THOMAS v. STATE (2018)

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.

SUAREZ, J.