FENELON v. STATE (2006)

District Court of Appeal of Florida,Fourth District.

Max FENELON, Appellant, v. STATE of Florida, Appellee.

No. 4D06-227.

Decided: May 03, 2006

Max Fenelon, Sanderson, pro se. Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.

Max Fenelon appeals the denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The motion raised two claims, but we reverse only as to one. We accept the state's concession of error on this claim and reverse, because the trial court failed to attach record evidence to refute the facially sufficient claim that the ten-year sentence for battery while in a detention facility exceeded the five-year statutory maximum for a third-degree felony. See § 784.082(3), Fla. Stat. (1999); Johnson v. State, 665 So.2d 380 (Fla. 4th DCA 1996) (holding that the trial court must attach portions of the record conclusively refuting a legally sufficient 3.800(a) claim).

Accordingly, we reverse and remand for attachment of portions of the record refuting appellant's claim of an illegal sentence, if such records exist.

PER CURIAM.

WARNER, TAYLOR and MAY, JJ., concur.

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