Summary
holding that defendant's claim that trial court's written sentencing order, which includes a habitual felony offender designation, does not comport with trial court's oral pronouncement, which did not include a habitual felony offender designation, is cognizable under a rule 3.800 motion, and therefore, trial court should have treated untimely rule 3.850 motion as one filed pursuant to rule 3.800
Summary of this case from De La Rosa v. StateOpinion
No. 1D07-0963.
October 26, 2007.
Appeal from the Circuit Court, Duval County, L.P. Haddock, J.
Raynard Wilder, pro se, Appellant.
Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
The appellant challenges the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.
The appellant asserts that his written habitual felony offender (HFO) sentence fails to comport with the oral pronouncement of sentence, which omitted the HFO designation. The trial court denied the motion as untimely because it was filed pursuant to rule 3.850. However, a claim that the written sentence does not conform to the oral pronouncement of sentence is cognizable in a rule 3.800(a) motion. Byers v. State, 916 So.2d 923 (Fla. 1st DCA 2005). The trial court should have treated the appellant's motion as one filed pursuant to rule 3.800(a). See Valdes v. State, 765 So.2d 774 (Fla. 1st DCA 2000); Richardson v. State, 719 So.2d 39 (Fla. 2d DCA 1998).
Accordingly, the order denying the appellant's motion is reversed and the cause remanded for the trial court to resentence the appellant or attach portions of the record refuting his claim.
REVERSED and REMANDED.
BROWNING, C.J., BARFIELD and BENTON, JJ., concur.