       Third District Court of Appeal
                               State of Florida

                       Opinion filed November 19, 2014.
                             ________________

                               No. 3D14-1344
                         Lower Tribunal No. 11-31129
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                         Noe Boo, a.k.a. Noel Diaz,
                                   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, Dava J. Tunis, Judge.

      Noe Boo a.k.a. Noel Diaz, in proper person.

      Pamela Jo Bondi, Attorney General, for appellee.


Before SHEPHERD, C.J., and LAGOA, and SCALES, JJ.

                          ON CONFESSION OF ERROR

      PER CURIAM.
      Noe Boo, a.k.a. Noel Diaz (“Boo”), appeals the trial court’s order summarily

denying his Motion for Correction of Jail Sentence/Credit pursuant to Florida Rule

of Criminal Procedure 3.801. The trial court subsequently denied Appellant’s

motion for rehearing as well as his request for an evidentiary hearing. On June 5,

2014, Appellant filed a notice of appeal challenging both the trial court’s final

order and its denial of his motion for rehearing. Based on the State’s confession of

error, we reverse and remand for further proceedings.

      In his 3.801 motion, Appellant alleged that he should have been credited

with 566 days served, not 367 days, as calculated by the Department of Corrections

(“DOC”), and later adopted through the trial court’s order. As the State concedes,

the trial court failed to attach any documents to its order that conclusively refuted

Appellant’s allegations. In fact, the attached DOC calculations tend to support

Appellant’s allegations in that they contain patently erroneous mathematical

conclusions.

      Pursuant to Florida Rule of Criminal Procedure 3.801(e), which incorporates

Florida Rule of Criminal Procedure 3.850(f), the trial court was required to attach

records that conclusively refuted Appellant’s motion seeking additional jail credit.

See Fla. R. Crim. P. 3.850(f)(5) (“If the denial is based on the records in the case, a

copy of that portion of the files and records that conclusively shows that the




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defendant is entitled to no relief shall be attached to the final order.”). See also Fla.

R. App. P. 9.141(b)(2)(D).

      As such, we reverse and remand for the trial court to: (i) attach documents

refuting Appellant’s claim; (ii) award Appellant proper credit for time served; or

(iii) set the matter for an evidentiary hearing.

      Reversed and remanded for further proceedings.




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