final until disposition of timely filed motion for rehearing.
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.
J. Martinez, Public Defender, and James Odell, Assistant
Public Defender, for appellant.
Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant
Attorney General, for appellee.
LAGOA, EMAS and SCALES, JJ.
ON MOTION FOR REHEARING
consideration of the State's motion for rehearing, we
grant rehearing, withdraw our previous opinion and substitute
the following in its place.
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).
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
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.,  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.")