Dearriba v. State , 2017 Fla. App. LEXIS 11729 ( 2017 )

Third District Court of Appeal
State of Florida
Opinion filed August 16, 2017.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D17-2
Lower Tribunal Nos. 99-8521, 00-23981
________________
Todd Dearriba,
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, Stephen Thomas Millan, Judge.
Todd Dearriba, in proper person.
Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant
Attorney General, for appellee.
Before LAGOA, SCALES, and LUCK, JJ.
LAGOA, J.
Appellant, Todd Dearriba (“Appellant”), appeals from an order summarily
denying his pro se motion titled “Readdress Previous Motion to Clarify Sentence
Structure.” Because the record before us fails to show that Appellant is entitled to
no relief, we reverse and remand for attachments of records conclusively showing
that Appellant is not entitled to relief.
I. FACTUAL AND PROCEDURAL HISTORY
On July 8, 2016, Appellant filed a “Motion to Clarify Sentence Structure or
in Opposition Motion for Jail Time Credit” pursuant to Florida Rule of Criminal
Procedure 3.801. In that motion, Appellant states that at his original sentencing
hearing in two separate cases (Case Number F99-8521 and Case Number F00-
23981) he had been credited 709 days of jail credit time. Appellant’s motion
further asserted that at his resentencing hearing, he was resentenced to fifteen years
of imprisonment in both cases, and was credited 709 days in Case Number F99-
8521 but only 619 days in Case Number F00-23891. Appellant requested
clarification from the trial court as to whether the sentences had been imposed
coterminously and further requested that his sentences in both cases reflect the
proper jail credit awarded previously at his original sentencing hearing.
On July 28, 2016, the trial court entered a written order granting Appellant’s
motion and stating: “sentence in F99-8521 is correct, motion pertains to F00-
23981.” Appellant did not appeal the July 28, 2016, order.
2
On November 15, 2016, Appellant filed another motion titled “Readdress
Previous Motion to Clarify Sentence Structure.” In that motion, Appellant alleged
that the trial court’s July 28, 2016, order never addressed whether the two
sentences were imposed coterminously. Appellant requested that the trial court
“reissue an order to the Florida Department of Corrections reclarifying its previous
order rendered on July 28, 2016 that the Defendant was granted his sentences to be
[run] conterminous which would terminate both sentences stated above on
December 18, 2017 in this cause.” On December 1, 2016, the trial court
summarily denied Appellant’s November 15, 2016, motion without a hearing.
This appeal ensued.
This Court sua sponte ordered the State to address whether the December 1,
2016, order constituted an appealable order. In its response, the State asserted that
the order was not appealable because Appellant’s November 15, 2016, motion was
an untimely motion for rehearing.
II. ANALYSIS
Florida Rule of Appellate Procedure 9.140(b)(1)(D) provides that:
(1) Appeals Permitted. A defendant may appeal
....
(D) orders entered after final judgment or
finding of guilt, including orders revoking or
modifying probation or community control,
or both, or orders denying relief under
3
Florida Rule of Criminal Procedure 3.800
(a), 3.801, 3.850, 3.851, or 3.853.
Here, the trial court’s July 28, 2016, order granted Appellant’s rule 3.801 motion.
As such, it was not an appealable order pursuant to rule 9.140(b)(1)(D). Although
the Appellant’s November 15, 2016, rule 3.801 motion seeks the type of relief
normally found in a motion for rehearing, we do not consider it a motion for
rehearing as the trial court’s July 28, 2016, order did not deny Appellant’s July 8,
2016, motion, but instead granted it.
Because Appellant appeals from the trial court’s December 1, 2016, order
summarily denying his motion, this Court must reverse unless the postconviction
record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is
entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D). Because the record
before us fails to make the required showing, we reverse the order and remand for
attachment of records conclusively showing that the Appellant is not entitled to
any relief or an evidentiary hearing. See Langdon v. State, 947 So. 2d 460 (Fla. 3d
DCA 2007). If the trial court again enters an order summarily denying the
postconviction motion, the trial court shall attach record excerpts conclusively
showing that the Appellant is not entitled to any relief.
Reversed and remanded for further proceedings.
4