Virgil O. Stewart v. State

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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 VIRGIL O'KEITH STEWART, Appellant, v. Case No. 5D16-3564 STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed May 26, 2017 3.801 Appeal from the Circuit Court for Marion County, Anthony M. Tatti, Judge. James S. Purdy, Public Defender, and Alexander J. Gilewicz, Assistant Public Defender, Daytona Beach, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee. PER CURIAM. Virgil Stewart appeals the summary denial of his motion seeking additional credit for time served both in jail and in prison. Although the trial court properly concluded Stewart’s motion was facially insufficient, it also denied Stewart’s claim on the merits. This denial was error. The trial court should have allowed Stewart sixty days to amend his motion. See Nazario v. State, 188 So. 3d 975, 976 (Fla. 5th DCA 2016) (holding that when defendant files facially insufficient rule 3.801 motion, court must enter non-final, non-appealable order allowing defendant sixty days to amend motion); see also Fla. R. Crim. P. 3.850(e). We reverse the trial court’s summary denial order and remand to provide Stewart sixty days to amend his motion. REVERSED and REMANDED with instructions. PALMER, ORFINGER, and EVANDER, JJ., concur. 2

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