Kendall v. State

664 So. 2d 352, 1995 Fla. App. LEXIS 12903, 1995 WL 739351

Opinion

THOMPSON, Judge.

Mark Kendall appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Although Kendall’s motion raised several claims, we conclude that only one has merit.

Kendall entered guilty pleas to, and was convicted of, aggravated battery with a deadly weapon and resisting an officer without violence. He was sentenced to one year in the county jail, followed by 30.25 months in state prison, followed by five years probation. Kendall’s rule 3.850 motion alleged that his guilty pleas and sentence were negotiated with the state but that the sentence he actually received was in excess of the agreed sentence. Kendall’s motion further alleged that the trial court would not allow him to withdraw his plea when the sentence did not conform to the plea agreement.

We remand to afford the trial court an opportunity to attach a copy of the plea hearing transcript conclusively refuting or supporting Kendall’s claim. See Baldon v. State, 648 So.2d 796 (Fla. 1st DCA 1994) (reversing order denying rule 3.850 motion to allow trial court to attach portions of record conclusively refuting appellant’s claim that sentence exceeded plea bargain). With regard to Kendall’s remaining claims, we affirm the trial court’s summary denial. .

AFFIRMED in part; REVERSED in part; and REMANDED.

GOSHORN and GRIFFIN, JJ., concur.