Summary
In Simon v. State, 761 So.2d 1219 (Fla. 2d DCA 2000), we relied upon a transcript of the sentencing hearing to determine that the oral sentence was not a habitual offender sentence.
Summary of this case from Simon v. StateOpinion
No. 2D00-897.
Opinion filed June 30, 2000.
Appeal pursuant to Fla.R.App.P. 9.140(i) from the Circuit Court for Polk County; Dennis P. Maloney, Judge.
Johnny Edward Simon appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the trial court as to Simon's claim that the court did not orally pronounce him to be a habitual offender in case number CF91-4339, and affirm in all other respects.
As the transcript attached to the trial court's order shows, Simon is correct that the court did not orally sentence him as a habitual offender in case number CF91-4339. Had the trial court attached to its order a copy of the judgment and sentence demonstrating that Simon was given the same sentence in writing as was orally pronounced, we would affirm. See McDaniel v. State, 751 So.2d 182 (Fla. 2d DCA 2000). However, nothing in the attachments to the order demonstrates that the written judgment and sentence in case number CF91-4339 does not mistakenly reflect a habitual offender sentence.
Apparently, the trial court did not attach the written sentence to its order because it found that the claim was procedurally barred. The trial court relied on the fact that this issue was identified by trial counsel in the statement of judicial acts to be reviewed on appeal. This document alone does not conclusively demonstrate that the issue was addressed on appeal.
Affirmed in part, reversed in part, and remanded.
THREADGILL, A.C.J., and GREEN and SALCINES, JJ., Concur.