       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 23, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-1018
                          Lower Tribunal No. 97-4270
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                          Mister David Simmons,
                                    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, Rodney Smith, Judge.

      Mister David Simmons, in proper person.

     Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney
General, for appellee.


Before ROTHENBERG, SALTER, and LOGUE, JJ.

      ROTHENBERG, Judge.

      The defendant, Mister David Simmons, appeals an order summarily denying
his motion to correct an illegal sentence under Florida Rule of Criminal Procedure

3.800(a), challenging the imposition of the habitual offender enhancement for the

offense of second degree murder with a firearm based on State v. Thompson, 750

So. 2d 643 (Fla. 1999). On appeal from a summary denial, this Court must reverse

unless the postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows

conclusively that the appellant is entitled to no relief.      See Fla. R. App. P.

9.141(b)(2)(D).

      Because the record now before us fails to make the required showing, we

reverse the order and remand for further proceedings. If the trial court again enters

an order summarily denying the postconviction motion, the court shall attach

record excerpts conclusively showing that the appellant is not entitled to any relief.

      We note that the State in its response filed in this Court has asserted that the

defendant was convicted of a life felony, and therefore, he would “not be eligible

for a habitual offender enhancement if he falls within the window period between

October 1, 1995 and May 24, 1997.” (emphasis added). See Kinsey v. State,

831So. 2d 1253, 1254 (Fla. 2d DCA 2002) (“The imposition of a habitual felony

offender sentence for a life felony can be challenged under the authority of

Thompson if the life felony was committed between October 1, 1995, and May 24,

1997.”).   Rather than confirming the date of the offense, the State merely

acknowledged that the defendant claimed in his rule 3.800(a) motion that the



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second degree murder with a firearm occurred on January 30, 1997, within the

window period. At this point, we do not have any record evidence before this

Court as to the date the offense occurred, but note that briefs filed before this Court

almost fifteen years ago in case number 3D00-1507 indicate that the offense

occurred on January 30, 1997.1 Thus, it appears that the defendant’s motion may

be well-taken. We, therefore, encourage the trial court to address the merits of the

defendant’s postconviction motion expeditiously on remand.

      Reversed and remanded for further proceedings.




1 If the defendant committed this offense on January 30, 1997, and the State
concedes that under Thompson the enhancement of the defendant’s second degree
murder with a firearm conviction would be illegal if committed on this date, the
State should have confessed error at the trial court level, provided the date in its
response to this Court, and confessed error on appeal.

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