Appeal under Florida Rule of Appellate Procedure 9.141(b)(2)
from the Circuit Court for Miami-Dade County Lower Tribunal
No. 11-5978, Yvonne Colodny, Judge.
Gilman, in proper person.
Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant
Attorney General, for appellee.
LAGOA, EMAS and SCALES, JJ.
CONFESSION OF ERROR
Gilman appeals an order denying his Florida Rule of Criminal
Procedure 3.800(a) motion to correct an illegal sentence. For
the following reasons, based on the State's proper
confession of error, we reverse and remand for a
determination as to whether Gilman was still on probation in
case number F87-38796 when he committed the offenses in the
instant matter for which he was designated a habitual felony
March 28, 2012, in case number F11-5978, Gilman pled guilty
to one count of attempted sexual battery on a child less than
twelve by an adult and one count of armed kidnapping of a
child under thirteen years of age with a sexual battery.
Gilman committed the offenses on April 1, 1989. Pursuant to
the parties' Probation Plea Agreement, in exchange for
his plea, Gilman agreed to be sentenced to thirty years in
prison with all credit for time served, followed by ten years
of reporting probation. Gilman also agreed to be sentenced as
a habitual felony offender pursuant to section 775.084 of the
trial court accepted Gilman's plea and sentenced him
pursuant to the Probation Plea Agreement. The trial court
designated Gilman a habitual felony offender under section
775.084 by relying upon Gilman's prior felony convictions
for burglary of a structure (case number F78-17842) and grand
theft (case number F79-9766), and upon case number F87-38796,
wherein Gilman entered a plea of nolo contendere to cocaine
August 24, 2016, Gilman filed the instant rule 3.800(a)
motion, claiming that he was improperly designated a habitual
felony offender. Specifically, Gilman argued that case number
F87-38796 could not be used as a predicate for
habitualization under section 775.084 because: (i) he had
been placed on probation with adjudication of guilt
withheld in case number F87-38796; and (ii) he was no longer
on probation in case number F87-38796 when, on April 1, 1989,
he committed the offenses charged in case number F11-5978.
The State responded to Gilman's motion, claiming that
Gilman had been convicted of cocaine possession in case
number F87-38976. Believing there was a discrepancy in the
record as to whether Gilman had been convicted, or
adjudication of guilt had been withheld, in case number
F87-38796, and because a transcript of the sentencing hearing
in case number F87-38796 had not been provided below, the
trial court denied Gilman's motion without prejudice
because Gilman had failed to demonstrate entitlement to
relief on the face of the record.
appeal, the State now concedes that, in case number
F87-38796, adjudication of guilt for cocaine possession was
withheld and Gilman was placed on probation for one year.
Therefore, the parties both agree that Gilman can be
designated a habitual felony offender only if he was still on
probation in case number F87-38796 when, on April 1, 1989, he
committed the subsequent offenses in the instant case, case
number F11-5978. See § 775.084(1)(a)2., (2),
Fla. Stat. (1988).
would appear, therefore, that on the record before us, Gilman
has demonstrated an entitlement to relief. To this, however,
the State argues that given the reality that a
defendant's probationary term sometimes commences on a
date later than that noted in the sentencing order,
particularly when special conditions are part of the
probation, Gilman might still have been on probation in case
number F87-38796 when he committed the subsequent offenses in
case number F11-5978. Therefore, the State asks that this
Court reverse and remand for further proceedings so the State
may have the opportunity to establish this from the files and
records of the trial court. Because of the close proximity of
the dates at issue here, we agree.
we reverse the order denying Gilman's rule 3.800(a)
motion and remand for the trial court to adjudicate
Gilman's motion after determining the dates ...