       Third District Court of Appeal
                               State of Florida

                         Opinion filed February 20, 2019.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D18-1093
                         Lower Tribunal No. 99-40891
                             ________________


                                 Tony Bruce,
                                    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, Eric William Hendon, Judge.

      Tony Bruce, in proper person.

     Ashley Moody, Attorney General, and Magaly Rodriguez, Assistant Attorney
General, for appellee.


Before EMAS, C.J., and SCALES and MILLER, JJ.

      PER CURIAM.
      Tony Bruce appeals the trial court’s summary denial of his motion to correct

illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In

that motion, Bruce alleged his prior convictions in case number F88-18388A did not

exist as a matter of law, and should not have been relied upon by the trial court in

determining that Bruce qualified as a habitual violent felony offender. Bruce further

asserted that, in the absence of those convictions, he did not qualify as a habitual

violent felony offender and his sentence was therefore illegal.

      In light of our threshold determination that Bruce’s motion is legally

sufficient,1 the State has properly and commendably conceded that we must reverse.

Although the trial court’s summary denial order expressly indicates that “the

defendant’s assertion is conclusively refuted by the attached certified conviction in

case F88-18388A,” no such record is attached to the trial court’s order. We therefore

reverse and remand this case to the lower court either to conduct a further hearing

or to issue an order of denial, attaching those portions of the record that conclusively


1
  See, e.g., Bover v. State, 797 So. 2d 1246, 1248-49 (Fla. 2001) (holding that a
defendant may utilize rule 3.800(a) to challenge the legality of his sentence under
these circumstances: “If the requisite predicate felonies essential to qualify a
defendant for habitualization did not exist, then the habitual offender sentence could
not have been imposed as a matter of law because it would impose a ‘kind of
punishment that no judge under the entire body of sentencing statutes could possibly
inflict under any set of factual circumstances.’ Carter [v. State], 786 So. 2d [1173],
at 1181 [(Fla. 2001)]. Therefore, we conclude that the adjudication of a defendant
as a habitual offender when the requisite sequential felonies do not exist may be
corrected as an illegal sentence pursuant to rule 3.800(a) so long as the error is
apparent from the face of the record.”)

                                           2
refute Bruce’s claim.2 See, e.g., McIntyre v. State, 844 So. 2d 679 (Fla. 4th DCA

2003); Standford v. State, 754 So. 2d 62 (Fla. 2d DCA 2000); Lee v. State, 731 So.

2d 71 (Fla. 2d DCA 1999).

      Reversed and remanded.




2
  We reject, as without merit and without need for further discussion, Bruce’s
alternative claim that, even if these prior convictions do exist, the trial court illegally
relied upon those prior convictions as both a factor in calculating Bruce’s guideline
sentence as well as a basis to find Bruce qualifies for sentencing as a habitual violent
felony offender.

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