FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-3648
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ALBERT DELON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Nassau County.
Robert M. Foster, Judge.
April 22, 2019
PER CURIAM.
Appellant, Albert Delon, appeals the trial court’s summary
denial of five of the claims raised in his motion for postconviction
relief filed pursuant to Florida Rule of Criminal Procedure 3.850.
As Appellant contends, and as the State conceded in its response
to our Toler ∗ order, the summary denial of Ground 1 was improper.
See McLin v. State,
827 So. 2d 948, 954 (Fla. 2002) (noting that to
uphold the summary denial of a postconviction claim, the claim
must either be facially invalid or conclusively refuted by the
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Toler v. State,
493 So. 2d 489 (Fla. 1st DCA 1986).
record). As such, reversal and remand as to Ground 1 is
warranted.
In Ground 1, Appellant alleged that trial counsel failed to
investigate the validity of the State’s notice of intent to classify
him as a prison releasee reoffender (“PRR”) based on a prior
conviction for the sale or delivery of cocaine, which the State
agreed to withdraw in exchange for Appellant’s guilty plea. He
also alleged that he would not have pled had he known that the
State could not seek PRR sentencing. Although the trial court
found that the record refuted the allegations based upon
Appellant’s prior conviction and sentence for that offense,
Appellant was, as the trial court found, sentenced to six months in
a county jail, not a state correctional facility operated by the
Department of Corrections or a private vendor. See §
775.082(9)(a)1., Fla. Stat. (2010) (defining a PRR as a defendant
who commits or attempts to commit certain offenses “within 3
years after being released from a state correctional facility
operated by the Department of Corrections or a private vendor . . .
following incarceration for an offense for which the sentence is
punishable by more than 1 year in this state”).
The Florida Supreme Court has held that “release from a state
correctional facility operated by the Department of Corrections or
a private vendor,” as set forth in section 775.082(9)(a)1., “does not
include release from a county jail.” State v. Lewars,
259 So. 3d 793,
802 (Fla. 2018). “[C]ommission of a PRR-qualifying offense within
three years of release from jail, rather than prison, does not satisfy
the requirements of section 775.082(9)(a)1.”
Id. Although Lewars
was issued after the proceedings below in this case, there was no
question here as to whether Appellant was released from the
Department of Corrections or from a county jail on his prior
offense. Cf. Taylor v. State,
114 So. 3d 355, 355-56 (Fla. 4th DCA
2013) (holding that the appellant’s release from federal custody
while housed at a county jail qualified as constructive release from
a correctional facility for purposes of PRR sentencing under section
775.082(9)(a)1.), disapproved by Lewars, 259 So. 3d at 796. Indeed,
Appellant was sentenced to jail and released from jail, which
clearly would not qualify under the PRR statute. See Cassista v.
State,
57 So. 3d 265, 267 (Fla. 5th DCA 2011) (“In most cases, it is
a simple matter to determine when an individual is released from
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a state correctional facility.”). Based upon such, Ground 1 was not
refuted by the record.
Accordingly, we reverse the order on appeal as to Ground 1
and remand for either an evidentiary hearing or attachment of
some other portion of the record that conclusively refutes
Appellant’s claim. We otherwise affirm.
AFFIRMED in part, REVERSED in part, and REMANDED with
instructions.
LEWIS, ROWE, and MAKAR, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Albert Delon, pro se, Appellant.
Ashley Moody, Attorney General, and Barbara Debelius, Assistant
Attorney General, Tallahassee, for Appellee.
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