Opinion
No. 94-859.
July 22, 1994. Rehearing Denied September 2, 1994.
3.850 Appeal from the Circuit Court for Putnam County; A.W. Nichols, III, Judge.
Solomon English, pro se.
Robert A. Butterworth, Atty. Gen., Tallahassee and Belle B. Turner, Asst. Atty. Gen., Daytona Beach, for appellee.
Solomon English appeals the trial court's summary denial of his rule 3.850 motion for postconviction relief, which raises a total of fourteen grounds. We affirm the court's denial of English's motion except with regard to one of the grounds that he has raised.
English in his motion alleges that his judgment for 90-1346-CFM, a conviction for attempted armed robbery, was incorrectly listed as a first-degree felony instead of a second-degree felony. However, the trial court's order summarily denied English's motion without including as an attachment a copy of the judgment conclusively demonstrating that he is not entitled to relief. See Fla.R.App.P. 9.140(g). Therefore, we reverse and remand to the trial court for it either to attach the judgment in lower court case number 90-1346-CFM to refute English's claim or to correct the scrivener's error if his claim is true. See, e.g., Small v. State, 624 So.2d 417 (Fla. 5th DCA 1993). English need not be present for this purpose.
AFFIRMED in part; REVERSED in part and REMANDED for proceedings consistent herewith.
W. SHARP, DIAMANTIS and THOMPSON, JJ., concur.