CLARK v. STATE (2023)

Charles J. Clark appeals an order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm without comment the portion of the postconviction court's order finding that Clark's motion was not cognizable pursuant to rule 3.800(a). We also affirm the court's finding that Clark's motion could not be considered pursuant to rule 3.850 but write to address an oversight in some final orders issued by courts in our district disposing of rule 3.850 motions and claims on procedural grounds.

We remind postconviction courts that they are required to attach to orders finding that a motion or claim is either untimely under rule 3.850(b) or improperly successive under rule 3.850(h), portions of the trial court record supporting those findings. See Fla. R. Crim. P. 3.850(h)(2) (“When a motion is dismissed under this subdivision, a copy of that portion of the files and records necessary to support the court's ruling shall accompany the order denying the motion.”); see also Fla. R. App. P. 9.141(b)(2)(D) (“[U]nless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.”). Failure to do so may subject orders to reversal to either attach supporting documents from the trial court record or consider rule 3.850 claims on the merits. See Love v. State, 264 So. 3d 1182, 1183 (Fla. 2d DCA 2019) (“[T]he court did not attach to its order any documents—such as Love's previous motion and the order denying it—to demonstrate the successiveness of Love's claim.”); Green v. State, 985 So. 2d 1155, 1155 (Fla. 3d DCA 2008) (“[T]he record does not conclusively demonstrate that the defendant's motion was untimely.”).¹

Affirmed.

FOOTNOTES

1.   No trial court records were attached to the postconviction court's order in this case. We affirmed the portion of the court's order finding that Clark's motion could not be considered pursuant to rule 3.850 by exercising our discretion to take judicial notice of our own record in Clark's direct appeal which established that his motion was untimely under rule 3.850(b).

LABRIT, Judge.

LaROSE and LUCAS, JJ., Concur.