Third District Court of Appeal
State of Florida
Opinion filed August 30, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-332
Lower Tribunal No. 15-15388
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Victor M. Barrios,
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, Daryl E. Trawick, Judge.
Victor M. Barrios, in proper person.
Pamela Jo Bondi, Attorney General, and Kayla H. McNab, Assistant
Attorney General, for appellee.
Before LAGOA, EMAS and SCALES, JJ.
PER CURIAM.
Victor Barrios, the defendant below, appeals an order summarily denying
his motion for correction of jail sentence pursuant to Florida Rule of Criminal
Procedure 3.801.
On this appeal, the parties are in agreement that Barrios’s rule 3.801 motion
was legally insufficient for failure to contain the contents required under
subsection (c) of the rule, but that the trial court erred in denying his motion
without first giving Barrios an opportunity to amend his timely, but facially
insufficient motion. See Fla. R. Crim. P. 3.801(e) (incorporating Florida Rule of
Criminal Procedure 3.850(f)(2), which provides that where a timely, but facially
insufficient motion is filed, “the court shall enter a nonfinal, nonappealable order
allowing the defendant 60 days to amend the motion”); Belanger v. State, 146 So.
3d 136, 137 (Fla. 3d DCA 2014) (“Based on our review of the defendant’s motion,
we agree with the trial court that the defendant’s motion fails to include all of the
information required by rule 3.801(c). However, because this was the defendant’s
first attempt to file such a motion, the trial court erred by denying the defendant’s
motion without giving the defendant leave to amend his motion.”) (footnote
omitted).
Upon the State’s proper confession of error, and our own review of the scant
record before us, we reverse the order under review to allow Barrios to file a
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facially sufficient rule 3.801 motion within sixty days of the issuance of this
Court’s mandate. See Belanger, 146 So. 3d at 137.
Reversed.
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