Stewart v. State, 92-03079

Citation608 So.2d 536
Decision Date13 November 1992
Docket NumberNo. 92-03079,92-03079
Parties17 Fla. L. Week. D2559 Ernest STEWART, Jr., Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

PER CURIAM.

Ernest Stewart appeals the summary denial of his unsworn motion to vacate or correct sentence, filed pursuant to rule 3.800(a). Mr. Stewart maintains that his sentence was an illegal guidelines sentence of fifteen years for a third-degree felony. The trial court apparently concluded that the offense was a second-degree felony and determined that the sentencing judge had intended to impose a habitual felony offender sentence. Thus, it declared the sentence legal and entered a "nunc pro tunc" order amending the earlier sentence to reflect that it was imposed pursuant to the habitual felony offender statute. We reverse and remand for further proceedings because the attachments to the appealed order are insufficient to support the ruling.

This record does not contain the challenged sentence. The only scoresheet before us appears to be an incorrect scoresheet that may have been an estimate prepared by the defendant. That scoresheet claims the offense is a third-degree felony. However, there are other references in the record to a drug offense that would be a second-degree felony.

It is clear from the attached documents that the state sought a habitual offender sentence following the defendant's convictions. At a sentencing hearing on January 23, 1990, the trial court obviously intended to impose a habitual offender sentence. However, the defendant was not represented at that hearing, and the trial court decided to vacate that sentence at a subsequent hearing on February 6, 1990. The trial court scheduled another sentencing hearing. We have no information concerning whether that hearing occurred and, if so, what sentence was imposed.

Interestingly, Mr. Stewart has filed a copy of a letter from his counsel on direct appeal explaining that the habitual offender box had not been checked on his sentence. The attorney explained that an appeal of this error would simply result in a remand for a new sentencing hearing at which the defendant could be properly habitualized. See Graves v. State, 548 So.2d 801 (Fla. 1st DCA 1989); Johnson v. State, 576 So.2d 916 (Fla. 2d DCA 1991). Apparently, the defendant's counsel convinced him to dismiss the appeal so that he could receive the gain time associated with a nonhabitual sentence. See Sec. 775.084(4)(e), Fla.Sta...

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3 cases
  • Philip Morris USA, Inc. v. Duignan, Case No. 2D15–5055
    • United States
    • Court of Appeal of Florida (US)
    • November 15, 2017
    ...were prohibited was harmful where the facts showed that "a review of the testimonies could have been most helpful to the jury"); Roper, 608 So.2d at 536 (holding that, where there were discrepancies between the testimony requested and other testimony in the case, "the trial court's refusal ......
  • Wyche v. State, 93-486
    • United States
    • Court of Appeal of Florida (US)
    • September 30, 1993
    ...exceeding the statutory maximum for the convicted offenses. Such claims may be raised in a rule 3.800(a) motion. See Stewart v. State, 608 So.2d 536 (Fla. 2d DCA 1992). Based upon our own examination of the record and the state's concession of error, we have determined the trial court's ord......
  • State v. Brower, 92-00672
    • United States
    • Court of Appeal of Florida (US)
    • November 13, 1992

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