Fornaro v. State

791 So. 2d 555, 2001 Fla. App. LEXIS 10782, 2001 WL 863576

Opinion

NORTHCUTT, Judge.

Stephen Fornaro filed a motion purporting to seek relief under Florida Rule of Criminal Procedure 3.850 based on our supreme court’s decision in Heggs v. State, 759 So.2d 620 (Fla.2000). The circuit court discerned that Fornaro’s motion actually sought correction of an allegedly illegal sentence and did not seek to withdraw the plea upon which the sentence was based. Therefore, the court properly treated the motion as one filed pursuant to rule 3.800 and correctly denied it.

We affirm the circuit court’s order without prejudice to any right Fornaro may have to file a proper motion to withdraw his plea under rule 3.850. We note that if Fornaro files such a motion and is successful, the Ststte, too, will be released from its side of the plea bargain. See Sidell v. State, 787 So.2d 139 (Fla. 2d DCA 2001).

ALTENBERND, A.C.J., and CASANUEVA, J., Concur.