       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 26, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                              No. 3D16-2742
             Lower Tribunal Nos. 81-8037-A, 81-12617, 81-12733
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                             Tyrone Rahmings,
                                    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, Veronica Diaz, Judge.

      Tyrone Rahmings, in proper person.

     Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney
General, for appellee.


Before SUAREZ, LAGOA, and FERNANDEZ JJ.

      LAGOA, J.
      Defendant, Tyrone Rahmings, appeals from the trial court’s order denying

his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure

3.800. Defendant argues that reversal is warranted in light of Atwell v. State, 197

So. 3d 1040 (Fla. 2016). The State concedes that on the face of the motion the

case should be remanded for further proceedings but contends that any remand

should be without prejudice to the trial court conducting an evidentiary hearing to

determine Defendant’s age at the time of the offenses committed in case numbers

F81-8037A, F81-12617, and F81-12733. We agree.

      The record reveals a discrepancy exists regarding the Defendant’s correct

date of birth. The arrest affidavit contained in the record shows Defendant’s date

of birth as December 5, 1963. The Florida Department of Corrections, however,

lists Defendant’s date of birth as December 5, 1962. Because the offense dates for

the Defendant’s crimes range from March to May 1981, upon remand, the trial

court shall hold an evidentiary hearing to determine the Defendant’s correct date of

birth and to determine whether Defendant was a juvenile at the time of the

offenses. If Defendant’s date of birth proves to be December 5, 1962, Defendant

would be ineligible for relief under Atwell. However, if Defendant’s date of birth

proves to be December 5, 1963, the trial court shall resentence Defendant pursuant

to the sentencing provisions enacted in chapter 2014-220, Laws of Florida. See

Atwell, 197 So. 3d at 1050.



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Reversed and remanded for evidentiary hearing.




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