Gibson v. State

38 So. 3d 234, 2010 Fla. App. LEXIS 9118, 2010 WL 2509172

Opinion

PER CURIAM.

Appellant, Derrick Gibson, once again appeals a trial court order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 8.800(a). This court reversed previous trial court orders summarily denying this same motion in Gibson v. State, 944 So.2d 426 (Fla. 4th DCA 2006) and Gibson v. State, 967 So.2d 410 (Fla. 4th DCA 2007).

This time, the trial court, after holding an evidentiary hearing and considering additional documentation, concluded in the order now being appealed that the exhibits presented by the state clearly indicated that Gibson’s release from Department of Corrections’s custody was within three years of his robbery charge, qualifying him for sentencing as a prison releasee reoffen-der. We have reviewed the order and its attachment of those documents and cannot agree. The state has not shown evidence to refute Gibson’s claim that his last release was from temporary detention.

We, therefore, reverse and remand for the trial court to grant this motion and for the court to conduct resentencing consistent with this opinion. See Tumblin v. State, 965 So.2d 354 (Fla. 4th DCA 2007).

Reversed and Remanded.

STEVENSON, HAZOURI and DAMOORGIAN, JJ., concur.