Austin v. State

874 So. 2d 47, 2004 Fla. App. LEXIS 6593, 2004 WL 1057850

Opinion

PER CURIAM.

The order denying Defendant’s rule 3.800(a) motion to correct illegal sentence is affirmed, but for reasons other than those expressed in the order on appeal.

The trial court found that the instant motion was successive to Defendant’s prior rule 3.800(a) motions; however, nothing in the summary record established that was so. Nevertheless, the denial is affirmed because the motion essentially challenged the validity of factors the trial court used to depart upward on resentencing, and its alleged refusal to consider factors in mitigation. If preserved, these challenges could have been raised in a direct appeal from the resentencing, but they are not claims of illegal sentence cognizable in a rule 3.800(a) motion. See Carter v. State, 786 So.2d 1173 (Fla.2001); Blakley v. State, 746 So.2d 1182, 1187 (Fla. 4th DCA 1999).

STEVENSON, HAZOURI and MAY, JJ., concur.