Drake v. State

807 So. 2d 675, 2001 Fla. App. LEXIS 17649, 2001 WL 1589607

Opinion

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 comment, 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.