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Gilman v. State

Florida Court of Appeals, Third District

May 2, 2018

Dennis Gilman, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An 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.

          Carlos J. Martinez, Public Defender, and James Odell, Assistant Public Defender, for appellant.

          Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.

          Before LAGOA, EMAS and SCALES, JJ.

          ON MOTION FOR REHEARING

          SCALES, J.

         Upon consideration of the State's motion for rehearing, we grant rehearing, withdraw our previous opinion and substitute the following in its place.

         Dennis Gilman appeals an order denying his Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence. Because Gilman did not affirmatively demonstrate entitlement to relief on the face of the record, we affirm. Gomez v. State, 137 So.3d 1037, 1038 (Fla. 3d DCA 2014).

         On 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 Florida Statutes.

         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 possession.[1]

         On 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.

         Because there is 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. Finding no error, we affirm.[2], [3] See Gomez, 137 So.3d at 1038 ("Although such a claim is cognizable under rule 3.800(a) if the sentencing error may be resolved as a matter of law by merely examining the face of the record, the defendant has not provided us with a record to review. . . . Because the defendant has failed to attach a transcript of the sentencing hearing or other irrefutable evidence to support his claim, his motion was legally insufficient, and it was therefore properly denied by the trial court.") (citation omitted).

         Affirmed.

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