Lee v. State , 907 So. 2d 1264 ( 2005 )

907 So. 2d 1264 (2005)

Dave Anthony LEE, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D05-805.

District Court of Appeal of Florida, Third District.

August 3, 2005.

Dave Anthony Lee, in proper person.

Charles J. Crist, Jr., Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.

Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.

SHEPHERD, J.

David Anthony Lee appeals an order denying his motion under Florida Rule of Criminal Procedure 3.800 for credit for jail time served. We reverse and remand.

The record before us is unclear concerning whether Lee is entitled to the jail time credit he seeks. As conceded by the state, the defendant may be entitled to additional credit. On the other hand, the sentence and the docket sheets can be read to suggest a contrary conclusion. The plea transcript was not attached to the order of denial.

Because the record before us fails to conclusively demonstrate that the appellant is not entitled to any relief, we reverse the denial of Lee's motion for post conviction relief. See Fla. R.Crim. P. 3.850(d); Fla. R.App. P. 9.141(b)(2)(D)("On appeal from the denial of relief, unless 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"). See also Barfield v. State, 900 So. 2d 723 (Fla. 3d DCA 2005); Cozza v. State, 756 So. 2d 272 (Fla. 3d DCA 2000). On remand, the trial court should either attach those portions of the record that conclusively refute defendant's claim or award him the appropriate credit for time served.

Reversed.