Thomas v. State

       Third District Court of Appeal
                                  State of Florida

                          Opinion filed February 28, 2018.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                No. 3D17-2148
                           Lower Tribunal No. 04-4047
                              ________________

                               Gregory Thomas,
                                     Appellant,

                                         vs.

                             The State of Florida,
                                     Appellee.


      An appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Veronica A. Diaz, Judge.

      Gregory Thomas, in proper person.

      Pamela Jo Bondi, Attorney General, for appellee.


Before SUAREZ, LAGOA, and LINDSEY, JJ.

      SUAREZ, J.

      Gregory Thomas appeals the final order denying his Florida Rule of

Criminal Procedure 3.800(a) Motion for Post-Conviction Relief. We reverse and

remand for further proceedings.
      Thomas was convicted of first degree murder, one count of robbery by

snatching, and one count of grand theft auto. Counts two and three are third

degree felonies; the sentence shows that he received a ten-year sentence for those

counts. He correctly notes that the maximum statutory penalty for a third degree

felony is five years. §775.082(3)(d), Fla. Stat. (2007). Thomas filed a motion to

correct these two sentences to reflect five years each. The trial court denied the

petition for legal insufficiency.      The State filed no response, and there is no

sentencing transcript in the record.

      In the absence of any explanatory record, the petition is sufficient to require

a clarification of the written sentence. It is not clear from the written sentence on

counts two and three how that ten year sentence applies to each third degree felony

count. The written sentence does not explicitly state whether ten years for counts

two and three are ten years per charge, or five years per charge (consecutive), or

whether those sentences were enhanced in any way to result in a ten year total

sentence.

      On remand, the trial court must either enter a new order attaching documents

that conclusively refute Thomas’s claim or must otherwise grant the appropriate

relief in resentencing Defendant to five years for each third degree felony

conviction, noting whether those terms are to be served concurrently or

consecutively.

      Reversed and remanded.

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