Diaz v. State

913 So. 2d 707 (2005)

Delbis DIAZ, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D05-1983.

District Court of Appeal of Florida, Third District.

October 19, 2005.

Delbis Diaz, in proper person.

Charles J. Crist, Jr., Attorney General, for appellee.

Before FLETCHER, RAMIREZ, and SUAREZ, JJ.

PER CURIAM.

Delbis Diaz appeals from an order summarily denying his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the record before us fails to conclusively show that Diaz is not entitled to the relief he seeks, we reverse the order on appeal as to Diaz's first and second claims^[1], and remand for an evidentiary hearing or attachment of records that conclusively show that Diaz is not entitled to relief. See Fla. R.App. P. 9.141(b)(2)(A),(D). We affirm denial of relief as to Diaz' third claim, which is not cognizable by 3.800 petition, and time-barred under Florida Rule of Criminal Procedure 3.850.

Affirmed in part, reversed and remanded in part.

NOTES

[1] Diaz claims that his written sentence fails to comport with the orally pronounced sentence (Claim One), and that he was given a twenty-three year general sentence for his two convictions of aggravated battery and burglary with assault and/or battery (Claim Two).