Gray v. State, 5D05-3162.

CourtUnited States State Supreme Court of Florida
Citation915 So.2d 254
Docket NumberNo. 5D05-3162.,5D05-3162.
PartiesTosha GRAY, Appellant, v. STATE of Florida, Appellee.
Decision Date02 December 2005
915 So.2d 254
Tosha GRAY, Appellant,
STATE of Florida, Appellee.
No. 5D05-3162.
District Court of Appeal of Florida, Fifth District.
December 2, 2005.

Page 255

Tosha Gray, Riverview, pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.


Gray appeals from the summary denial of her motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). She contends that she received an illegal sentence when the court changed her original sentence of three years in prison to reflect a minimum mandatory term of three years for drug trafficking. The trial court denied her motion, explaining that this motion is successive and that there was a plea agreement with the state in which the minimum mandatory term was waived as long as she performed a substantial assistance agreement, but she failed to perform. However, the trial court failed to attach any documentation to establish that the minimum mandatory term was pronounced at the original sentencing or to show some other basis authorizing the subsequent imposition of the minimum mandatory term. Accordingly, we reverse and remand this cause to the trial court for the purpose of attaching portions of the record which support its ruling, or to grant the relief requested.

It appears on the face of the record before us that Gray pled guilty to trafficking in one kilogram or more of GHB1 and was sentenced on March 25, 2004, to five years of probation, with three years in prison as a condition of probation. Gray filed a motion to modify the sentence, which was granted and she was sentenced on July 9, 2004, to three years in prison, with probation deleted. She alleges that the state waived the minimum mandatory term for the drug offense, which was permissible under the statute2.

Page 256

Gray's sentence was then changed on September 22, 2004, nunc pro tunc to the date of the original sentence, to reflect a minimum mandatory term of three years for drug trafficking. Although the court stated that Gray was present at that sentencing, she alleges that she was then in prison, serving her sentence on that date.

In denying her motion, the trial court stated that Gray had previously filed two motions requesting that the minimum mandatory portion of her sentence be deleted, they were denied, and that no appeals were filed. These motions and orders are not attached to the trial court's order.


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2 cases
  • Barriera v. State, 5D16–630.
    • United States
    • Court of Appeal of Florida (US)
    • July 29, 2016
    ...was not checked. As we have previously held, the “oral pronouncement of sentence controls over the written document.” Gray v. State, 915 So.2d 254, 256 (Fla. 5th DCA 2005) (citing Ashley v. State, 850 So.2d 1265, 1268 (Fla.2003) ). However, this issue has not been preserved. See Johnson v. ......
  • Felders v. State Of Fla., Case No. 5D10-4142
    • United States
    • Court of Appeal of Florida (US)
    • March 4, 2011
    ...a double jeopardy violation. The State concedes that Petitioner is entitled toPage 2relief from the minimum mandatory. See Gray v. State, 915 So. 2d 254 (Fla. 5th DCA 2005) (because minimum mandatory for drug trafficking may be waived, sentence not illegal where State fails to object to omi......

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