Barrios v. State

Third District Court of Appeal State of Florida

Opinion filed August 30, 2017. Not final until disposition of timely filed motion for rehearing. ________________

No. 3D17-332 Lower Tribunal No. 15-15388 ________________

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

2 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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