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Parker v. State

District Court of Appeal of Florida, First District
Jul 17, 2008
987 So. 2d 177 (Fla. Dist. Ct. App. 2008)

Opinion

No. 1D07-6571.

July 17, 2008.

Appeal from the Circuit Court, Duval County, L.P. Haddock, J.,

Gerry L. Parker, pro se, Appellant.

Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.


The Appellant challenges the postconviction court's summary denial of his rule 3.850 postconviction motion. Because the Appellant's third claim that his written judgment does not comport with the oral pronouncement is facially sufficient, we reverse. All other issues are affirmed without further discussion.

The Appellant claims his sentence is illegal because the sentencing judge did not orally pronounce that the sentence was a habitual felony offender sentence; however, the written judgment contains the imposition of a habitual felony offender sentence. The trial court failed to address id- the Appellant's claim because the rule an- 3.850 motion was summarily denied as un timely. However, this Court may construe the claim as if it were filed under rule 3.800(a). See Valdes v. State, 765 So.2d 774, 777 (Fla. 1st DCA 2000). As the State concedes, the trial court should have treated the third claim as though it were filed pursuant to rule 3.800(a). We accordingly reverse the postconviction court's summary denial of the Appellant's third claim and remand for the postconviction court to attach appropriate record portions refuting the claim, or grant relief.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

DAVIS, PADOVANO, and ROBERTS, JJ., concur.


Summaries of

Parker v. State

District Court of Appeal of Florida, First District
Jul 17, 2008
987 So. 2d 177 (Fla. Dist. Ct. App. 2008)
Case details for

Parker v. State

Case Details

Full title:Gerry L. PARKER, Appellant, v. STATE of Florida, Appellee

Court:District Court of Appeal of Florida, First District

Date published: Jul 17, 2008

Citations

987 So. 2d 177 (Fla. Dist. Ct. App. 2008)

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and remand for the postconviction court to attach appropriate record portions refuting the claim, or grant…