RUSSELL v. STATE (2002)

On Motion to Enforce Mandate

Oliver Russell has moved to enforce the mandate in Russell v. State, 786 So.2d 54 (Fla. 3d DCA 2001).   We conclude that further proceedings are necessary and grant the motion.

On remand from this court's previous decision, the State submitted a revised scoresheet to the trial court as well as documentation indicating that defendant-appellant Russell was under legal constraint at the time he committed his current crime.   Based on those materials, the trial court concluded that the defendant's sentencing range had not changed, and that he was not entitled to be resentenced.

In this court's prior opinion, however, we also indicated that on remand the defendant would be allowed to amend his motion under Florida Rule of Criminal Procedure 3.850 to allege that four of his previous convictions were uncounseled.^*  The defendant must have an opportunity to submit his amended motion.   We remand for that purpose, as well as consideration of the claim that the defendant is owed additional credit for time served.

The defendant also argues that the records presented by the State to the trial court may not be conclusive on the issue of legal constraint.   If the defense has a viable basis on which to demonstrate that the defendant's legal constraint ended at some earlier date, the defense may make that showing on remand.

Motion granted.

FOOTNOTES

FOOTNOTE.   The defendant asks that we address the applicable standards for the appointment of counsel.   That issue should be addressed with the trial court in the first instance.

COPE, J.