ORTIZ V. STATE
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IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM A.D., 2004 ** RODOLFO G. ORTIZ, ** Appellant, ** CASE NO. 3D04-1230 vs. THE STATE OF FLORIDA, Appellee. ** ** LOWER TRIBUNAL NO. 96-41769 ** Opinion filed October 20, 2004. An Appeal under Florida Rule of Appellate Procedure 9.141(b) (2) from the Circuit Court for Miami-Dade County, Diane Ward, Judge. Rodolfo G. Ortiz, in proper person. Charles J. Crist, Jr., Attorney General, for appellee. Before LEVY, FLETCHER, and RAMIREZ, JJ. ON MOTION FOR REHEARING DENIED RAMIREZ, J. Rodolfo G. Ortiz has moved for rehearing of our per curiam affirmance of the trial court s order denying his motion to correct an illegal sentence pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedure. He claimed in his motion that his sentence was illegal because it violated due process in that the sentence imposed was vindictive. He alleged that before the start of trial, the court asked the State what was the plea offer. The State responded by explaining what their offer was before trial and what it would be requesting if Ortiz was convicted. Ortiz relies on Wilson v. State, 845 So. 2d 142, 156 (Fla. 2003), which condemned judicial participation negotiations followed by a harsher sentence. however, fails negotiations. to allege judicial in plea Ortiz s motion, participation in any plea In denying his motion, the trial court explained that the plea offer was made by the State, not the judge. In his motion for rehearing before us, Ortiz argues that the trial judge participated in the negotiations, but he has not produced any evidence to corroborate his allegation. To raise an illegal sentence claim under rule 3.800(a) of the Rules of Criminal Procedure, 1) the error must have resulted in an illegal sentence, 2) the error must appear on the face of the record, and 3) the motion must affirmatively allege that the court records relief. 2001). demonstrate on their face an entitlement to Jackson v. State, 803 So. 2d 842, 844 (Fla. 1st DCA This third requirement would necessitate more than mere conclusory allegations, but must, at a minimum, show how and where the record demonstrates an entitlement to relief. 2 Id. Ortiz has documentary neither negotiations. proof that alleged the judge nor has he participated attached in any any plea Therefore, as the trial court explained, there would be no factual basis for a finding of vindictiveness. Rehearing is denied. 3
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