Spellers v. State

224 So. 3d 303, 2017 WL 3198199, 2017 Fla. App. LEXIS 10775

• Court: District Court of Appeal of Florida
• Decided: July 28, 2017
• Docket: Case No. 5D17-1231
• Status: Published

Opinion

PER CURIAM.

Bryan Spellers appeals the summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. He argues that the jury’s special finding that he discharged a firearm was insufficient under Apprendi¹ because the jury was not instructed that they had to make the special finding beyond a reasonable doubt. Although the trial court is correct that “Florida law does not require an express indication that special findings are made beyond a reasonable doubt when such indication may be inferred from the record,” see State v. Woodall, 216 So.3d 30, 33 (Fla. 6th DCA 2017), here, nothing may be inferred from the record because no record was attached to the order. Accordingly, we reverse the order summarily denying Spellers’ claim and remand for attachment of the records conclusively refuting his claim.

REVERSED AND REMANDED.

TORPY, EVANDER and BERGER, JJ., concur.

1 . Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).