CARROLL v. STATE

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2005 HORACE JONES CARROLL, Appellant, vs. ** ** CASE NO. 3D04-3268 ** THE STATE OF FLORIDA, Appellee. ** ** LOWER TRIBUNAL CASE NOS. F87-11792 F93-1913, F93-6583 Opinion filed August 24, 2005. An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Rosa Rodriguez, Judge. Horace Jones Carroll, in proper person. Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee. Before GERSTEN, GREEN, and FLETCHER, JJ. FLETCHER, Judge. Horace Jones Carroll seeks to reverse a trial court order denying relief pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the order denying post-conviction relief and remand for further proceedings. This is one of those circumstances where resolution of the substantive issue [credit for time served] requires examining transcripts of two untranscribed hearings. The defendant has requested immediate release pursuant to a mitigated sentence. As in Fulcher v. State, application of gain 875 time So. and 2d 647 credit (Fla. for time 3d DCA served 2004), to the mitigated sentence would produce the absurd result of immediate release, when it is clear that is not the result intended by the trial court. waiver and The the state need mitigated sentences. to agrees that determine the there remain specific issues terms of of the The state points out that review of the transcripts of the April 24, 2003 and May 1, 2003 hearings are necessary to determine the terms of the mitigated sentence. As the trial court failed to attach the necessary transcripts, we reverse and remand for further proceedings, and to attach the documentation necessary to refute the defendant s claim. Reversed and remanded. 2

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