Third District Court of Appeal
State of Florida
Opinion filed January 26, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-0565
Lower Tribunal No. F89-38288
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The State of Florida,
Appellant,
vs.
Carlos Alberto Avila,
Appellee.
An appeal from the Circuit Court for Miami-Dade County, Carmen
Cabarga, Judge.
Ashley Moody, Attorney General, and Michael W. Mervine, Bureau
Chief, and Brian H. Zack, Assistant Attorney General, for appellant.
Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant
Public Defender, for appellee.
Before EMAS, LINDSEY, and MILLER, JJ.
MILLER, J.
Appellant, the State of Florida, challenges an order granting a motion
for postconviction relief and directing the clerk of court to modify records,
including the Criminal Justice Information System (“CJIS”) criminal history,
to reflect that appellee, Carlos Alberto Avila, received a withhold of
adjudication for burglary of an occupied structure, as opposed to burglary of
an occupied dwelling. Because the trial court summarily granted relief
without first directing the State to respond and then conducting an evidentiary
hearing, we are constrained to reverse.
BACKGROUND
More than three decades after he entered into a negotiated plea
agreement and received a withhold of adjudication, Avila filed a document
entitled “Motion to Correct Incorrect History.” In the motion, he alleged his
CJIS criminal history entry incorrectly reflected “he was charged with
[b]urglary [of] an occupied dwelling.” This, he asserted, was erroneous
because “he [was] charged with criminal mischief,” a second-degree
misdemeanor, “for which a withhold of adjudication was the end result.” Avila
contended this error wrongfully precipitated a habitual violent offender
designation, and, citing a prior ruling vacating his conviction in an unrelated
case, he further alleged the State had previously agreed to correct the
purported error.
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At a duly noticed, non-evidentiary hearing, Avila sought to modify the
burglary charge reflected in his CJIS criminal history from burglary of an
occupied dwelling to burglary of an occupied structure. In support of his
position, he adduced the charging document in his case, an information filed
in 1989, which identified the crime charged as “burglary of a structure” in the
caption, and his probationary paperwork, which also reflected burglary of an
occupied structure.
The State requested additional time to obtain the judgment and
sentence but was chastised for engaging in dilatory tactics by a non-
presiding judge. It then argued that other documents of record, including the
arrest affidavit and body of the information, reflected that Avila had indeed
been charged with burglary of an occupied dwelling and there was no
indication the charge had been modified pursuant to the plea.
The trial court granted the motion and issued an order providing: “[t]he
Clerk of Court’s records as well as the [CJIS] records shall be updated to
reflect that the correct charge for count [one] is Burglary of an Occupied
Structure pursuant to [section] 810.02(3)C, a felony of the second degree,
and not Burglary of an Occupied Dwelling as it currently shows.” 1 A
1
There was no section 810.02(3)(c) in the 1989 Florida Statutes. Instead,
both burglary of a dwelling and burglary of a structure were proscribed by
section 810.02(3), Florida Statutes.
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subsequent motion for reconsideration was denied, and the instant appeal
followed.
ANALYSIS
As a threshold matter, because Avila did not allege his sentence was
illegal or assert any irregularity in the sentencing scoresheet and the relief
granted was substantive, we decline the invitation to treat the order on
appeal as a correction of an illegal sentence or mere scrivener’s error. See
Fla. R. Crim. P. 3.800; Reed v. State,
276 So. 3d 65, 66 (Fla. 2d DCA 2019).
Instead, we construe the order as one granting postconviction relief under
Florida Rule of Criminal Procedure 3.850.
Although rule 3.850 permits the summary denial of postconviction relief
motions where “the motion is legally sufficient but all grounds in the motion
can be conclusively resolved either as a matter of law or by reliance upon
the records in the case,” it contains no reciprocal provision authorizing a trial
court to summarily grant postconviction relief. Fla. R. Crim. P. 3.850(f)(5);
see State v. Lundy,
211 So. 3d 135, 137 (Fla. 4th DCA 2017). Instead, if a
motion is deemed legally sufficient, “[u]nless the motion, files, and records in
the case conclusively show that the defendant is entitled to no relief,” the trial
court is required to first direct the State to respond to the motion and then
convene an evidentiary hearing. Fla. R. Crim. P. 3.850(f)(6).
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In this case, the court did not pass on the legal sufficiency of the motion
and then render a determination as to whether the motion, files, and records
conclusively demonstrated Avila was entitled to no relief. And, although the
caption of the charging document reflected burglary of a structure, this fact,
standing alone, was not dispositive of his claim. See State v. Burnette,
881
So. 2d 693, 694–95 (Fla. 1st DCA 2004). Ordinarily, in such situations, the
improper designation of the crime in the caption may be rejected as
surplusage, and the crime is that alleged in the body of the information. See
Lewis v. State,
19 So. 2d 199, 200 (Fla. 1944); Funderburk v. State,
264 So.
3d 980, 981 (Fla. 4th DCA 2019); Figueroa v. State,
84 So. 3d 1158, 1160
(Fla. 2d DCA 2012). And here, because the body of the information reflected
that Avila “did unlawfully enter or remain in a structure, to wit: a dwelling,”
the electronic file did not contain an amended information, and the clerk’s
docket reflected Avila entered a plea as charged, at best, a response by the
State was required, and Avila was entitled to an evidentiary hearing.
Accordingly, we reverse and remand with instructions for the trial court to
conduct further proceedings consistent herewith.
Reversed and remanded.
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