McFarlane v. State, 3D14–2701.

• Decision Date: 07 January 2015
• Docket Number: No. 3D14–2701.,3D14–2701.
• Parties: Milton McFARLANE, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

155 So.3d 444 (Mem)

Milton McFARLANE, Appellant

v.The STATE of Florida, Appellee.

No. 3D14–2701.

District Court of Appeal of Florida, Third District.

Jan. 7, 2015.

Milton McFarlane, in proper person.

Pamela Jo Bondi, Attorney General, for appellee.

Before SUAREZ, LAGOA and SCALES, JJ.

Opinion

PER CURIAM.

This is an appeal from a February 6, 2014 order (and a September 22, 2014 order on rehearing) summarily denying Milton McFarlane's motion under Florida Rule of Criminal Procedure 3.800(a) to correct an illegal sentence (the “Order”). The Order denies the appellant's rule 3.800 motion as successive and refers to two earlier motions filed by McFarlane to correct his sentence. While those earlier motions, and the orders denying them, might be in the “court file” as referenced in the Order, they are not attached to the Order and are not a part of the record on appeal.

When, as here, the trial court summarily denies a rule 3.800 motion, the record must show conclusively that the appellant is entitled to no relief; otherwise this Court must remand. Fla. R. App. P. 9.141(b)(2)(D).

If the trial court relies on a portion of the court file not contained in the postconviction record, it is incumbent upon the trial court to make those portions of the court file part of the record. See Boyd v. State, 57 So.3d 268 (Fla. 5th DCA 2011).

If the trial court again enters an order summarily denying the postconviction motion, the trial court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.