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182 So. 3d 889

Byrd v. State

District Court of Appeal of Florida

Decided January 8, 2016

District Court of Appeal of Florida · decided 2016-01-08

Relies on McNair v. State · State v. Williams

Decided 2016-01-08

PER CURIAM.

¶1Appellant filed a rule 3.800(a) motion asserting-that his sentence has been improperly enhanced by the habitual felony offender statute (HFO), because one of thé two predicate offenses was actually a misdemeanor,- not a felony.- He'has attached a copy of the sentencing hearing transcript in the underlying case, which indicates the trial court convicted him of misdemeanor petit theft, but not robbery. The oral pronouncement prevails over the written judgment. State v. Williams, 870 So.2d 207 (Fla. 1st-DCA 2004). The state concedes that the postconviction court has not conclusively refuted this claim.

¶2We therefore reverse and' remand for theiower court to either attach the portion of the record that conclusively refutes the claim, or to resentence appellant. If re-sentenced, if appellant did not object during sentencing on the basis that the applicable prior convictions did not qualify him for HFO enhancement, the state may choose to present other, prior convictions that satisfy the qualifying conviction re*890quirement. McNair v. State, 920 So.2d 111, 112 (Fla. 1st DCA 2006).

¶3REVERSED AND REMANDED.

LEWIS, WETHERELL, and BILBREY, JJ., concur.
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