ULYSSES DRAKE, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The denial of the rule 3.850 motion is reversed because it was filed pursuant to appellate direction and should not have been deemed untimely. The denial of the rule 3.800(a) motion is affirmed.
Appellant filed motions pursuant to Florida Rules of Criminal Procedure 3.850 and 3.800(a). The trial court denied both motions. The rule 3.850 motion…
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SILBERMAN, Judge.
Ulysses Drake, Jr., appeals the summary denial of his motions filed pursuant to Florida Rules of Criminal Procedure 3.850 and 3.800(a). The denial of his rule 3.800(a) motion is affirmed without com ment, and the denial of his rule 3.850 motion is reversed.
The trial court denied the rule 3.850 motion as untimely. However, in Drake v. State, 772 So. 2d 38 (Fla. 2d DCA 2000), this court directed that Drake be permitted to file an amended rule 3.850 motion. Because the motion was filed pursuant to this court’s direction, it should not have been considered untimely.
In his motion Drake made a facially sufficient claim that he was not sentenced in accordance with his plea agreement. If he is correct, he is entitled to be resen-tenced. See Knight v. State, 611 So. 2d 602 (Fla. 2d DCA 1993). The trial court should examine the record to determine if Drake’s allegations are conclusively refuted by the record. If not, he should be resentenced.
Affirmed in part, reversed in part, and remanded.
FULMER, A.C.J., and COVINGTON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Cedrick E. Spann v. State, 772 So. 2d 38 (Fla. 4th DCA 2000)
- Ulysses Drake, Jr. v. State, 772 So. 2d 38 (Fla. 2d DCA 2000)
- Knight v. State, 611 So. 2d 602 (Fla. 2d DCA 1993)