Opinion
Nos. 3D04-2744, 3D04-2930.
July 13, 2005. Reconsideration Denied December 21, 2005.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Jacqueline Hogan Scola, Judge.
Craig Parham, in proper person.
Charles J. Crist, Jr., Attorney General, for appellee.
Before COPE, GERSTEN, and WELLS, JJ.
In these consolidated appeals, Craig Parham appeals from the denial of his motions to withdraw plea and to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Based on the State's proper confession of error, we reverse the denial of the defendant's 3.800(a) motion with respect to count 2 for grand theft, a third degree felony, and remand for resentencing. See § 775.084(4)(a)(3), Fla. Stat. (1993) (a habitual felony offender convicted of a third degree felony shall be sentenced "for a term of years not exceeding 10"). The defendant need not be present for resentencing. Moreover, since the record does not conclusively refute the defendant's claim to entitlement to credit for 263 days he served in Pinellas County, we reverse the summary denial of that claim and remand for further proceedings on the issue. See Davis v. State, 869 So.2d 766, 767 (Fla. 1st DCA 2004) (where the trial court summarily denied the defendant's motion for additional jail credit without attaching portions of the record to refute the claim, reversing the order and remanding "with instructions to the trial court to attach documentation conclusively refuting the appellant's allegation or for an award of such credit"). We affirm the remainder of the two orders on appeal, finding the balance of the defendant's claims to be without merit.
Affirmed in part, reversed in part, and remanded with instructions.