IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
MICHAEL WAYNE NELSON,
Appellant,
v. Case No. 5D17-464
STATE OF FLORIDA,
Appellee.
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Opinion filed July 28, 2017
3.800 Appeal from the Circuit Court
for Putnam County,
Scott C. Dupont, Judge.
Michael Wayne Nelson, East Palatka, pro
se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and L. Charlene Matthews,
Assistant Attorney General, Daytona
Beach, for Appellee.
PER CURIAM.
Michael Wayne Nelson (“Appellant”) appeals the denial of his motion to correct
illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Appellant
contends that the trial court’s oral pronouncement of his sentence conflicts with the written
sentence.
Appellant alleges in his motion that the trial court erred in failing to attach a copy
of the transcript of the sentencing hearing, suggesting that transcripts do exist. However,
it appears that the trial court based its denial of Appellant’s motion upon court minutes.
Other than Appellant’s allegation in his motion, there is no indication whether a transcript
of the hearing exists that would show whether there was a discrepancy between the oral
pronouncement and the written sentence. If a transcript is not filed in the record in the
trial court, it is possible, as Appellant seems to allege, that he may have a transcript that
was not filed. Therefore, we reverse the order under review and remand this case to the
trial court. See Mallon v. State, 939 So. 2d 198, 199 (Fla. 5th DCA 2006) (“On remand,
the trial court shall determine whether the written sentence conforms to the oral
pronouncement. If they do, the trial court shall attach written portions of the record
conclusively refuting Mallon’s claim.”). If the trial court concludes that the sentencing
transcript is not in the record and denies relief, it should do so without prejudice to
Appellant filing an amended motion attaching the transcript if one exists.
REVERSED and REMANDED.
SAWAYA, WALLIS, and EISNAUGLE, JJ., concur.
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