Graham v. State

366 So. 2d 498, 1979 Fla. App. LEXIS 13971

Opinion

PER CURIAM.

Appellant’s motion to vacate, set aside, or correct his sentence, filed pursuant to Florida Rules of Criminal Procedure, Rule 3.850, was denied without an evidentiary hearing. The trial court found that the motion did not state a legal cause of action upon which relief could be granted.

As to two of the three allegations set forth in the motion we agree with the trial court’s ruling. The third allegation was that prior to sentencing appellant was by court order sent to a drug rehabilitation center, where he spent four months, and that he should have been given credit on his sentence for the time he served at the rehabilitation center. If this allegation is determined by the court to be correct it would entitle appellant to the relief he seeks. Johnson v. State, 334 So.2d 334 (Fla. 2d DCA 1976). We point out that there is nothing in the record before us to refute this fact.

Accordingly, the order denying appellant’s motion is vacated and the cause remanded for further proceedings consistent with this opinion.

GRIMES, C. J., and BOARDMAN and RYDER, JJ., concur.