       Third District Court of Appeal
                              State of Florida

                        Opinion filed August 13, 2015.
                             ________________

                              No. 3D14-2650
                        Lower Tribunal No. 09-27045
                            ________________


                            Ramon Rodriguez,
                                  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, Teresa Mary Pooler, Judge.

      Ramon Rodriguez, in proper person.

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


Before WELLS, ROTHENBERG and SCALES, JJ.

      PER CURIAM.
                           ON CONFESSION OF ERROR

      Appellant Ramon Rodriguez appeals an “Order Denying Defendant’s

Motion for Additional Credit Time Served,” dated July 29, 2014. This trial court

order is in response to two motions filed by Rodriguez, both of which pertain to

earned jail credit arising from a succession of arrests, pleas of guilty, and probation

violations that occurred between 2009 and 2013. For the reasons set forth below,

and based on the State’s confession of error, we reverse and remand this matter to

the trial court for further proceedings.

      On June 4, 2014, Rodriguez filed a pro se motion, titled "Motion to Correct

Illegal Sentence," pursuant to rule 3.800 of the Florida Rules of Criminal

Procedure. While not entirely clear, Rodriguez’s June 4, 2014 motion asserts that

the trial court's August 22, 2013 prison sentence of 37.88 months is illegal,

primarily because a jail credit of 350 days is allegedly incorrect.

      On July 24, 2014, Rodriguez filed a second pro se motion, titled “Motion for

Jail Time Credit,” pursuant to rule 3.801 of the Florida Rules of Criminal

Procedure. Again, while not entirely clear, Rodriguez’s July 24, 2014 motion seeks

jail credit for 735 days, rather than the 350 days reflected in the trial court's order.1


1 In his pleadings below and his initial brief to this Court, Rodriguez has variously
mentioned being owed or awarded 607 days, 22 months and 745 days of jail credit.
Further confusing the matter, Rodriguez has attached as an exhibit to his initial
brief a portion of a document called “Felony Plea and Probation Disposition Form”
that contains a reference to “(607 days).”

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      The record on appeal reflects no State response to either of these motions.

      The trial court’s July 29, 2014 order on appeal summarily dispatches

Rodriguez’s effort to obtain additional jail credit time, although the order is not

clear whether it is adjudicating one or both of Rodriguez’s pro se motions. If the

order on appeal pertains to Rodriguez’s motion pursuant to rule 3.801, then the

trial court should have attached to its order the portion of the record that

conclusively shows that Rodriguez was not entitled to relief. Fla. R. Crim. P.

3.801(e).2

      On the State's proper confession of error, we reverse the trial court’s July 29,

2014 order and remand with instructions for the trial court to treat Rodriguez’s

3.801 motion as a timely filed motion. Pursuant to Rule 3.801(e), the trial court

should then either conduct an evidentiary hearing to determine the amount of jail

credit for which Rodriguez is entitled or, in the alternative, attach portions of the

record that conclusively demonstrate that Rodriguez is not entitled to relief. Boo

v. State, 152 So. 3d 81 (Fla. 3d DCA 2014) (Mem).

      With regard to Rodriguez’s 3.800 motion, challenging the legality of the

trial court’s 37.88 month prison sentence, the trial court should respond to this

motion appropriately.



2Rule 3.801(e) incorporates summary or evidentiary procedures established in rule
3.850(f).

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      The trial court should expedite this matter on remand. Further, we appoint

the office of the public defender to represent Rodriguez in remand proceedings.

      Reversed and remanded with instructions.




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