Kelley v. State

633 So. 2d 579, 1994 Fla. App. LEXIS 3027, 1994 WL 101311

Opinion

PER CURIAM.

This is an appeal of an order summarily denying a motion for correction of illegal sentences. We conclude that appellant’s motion should have been treated as one for post-conviction relief under rule 3.850, Florida Rules of Criminal Procedure, because of the issues which it raises. The motion meets the procedural criteria for such treatment as well. We further conclude that the issues treated in the motion were not raised or considered on appellant’s direct appeal.

We deny appellant’s request to disqualify the trial judge. However, we reverse and remand with instructions to the trial court to reconsider the motion as one for relief under rule 3.850, and either to hold an evidentiary hearing or to attach to its order denying the motion documents conclusively demonstrating that appellant is not entitled to relief.

REVERSED AND REMANDED.

ANSTEAD, HERSEY and KLEIN, JJ., concur.