McNeil v. State

993 So. 2d 1030, 2008 Fla. App. LEXIS 774, 2008 WL 200321

Opinion

PER CURIAM.

Elliot Antonio McNeil appeals the post-conviction court’s order denying his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). To resolve Mr. McNeil’s claim requires factual determinations that are not apparent from the face of the record. Therefore, this claim may not be raised by a rule 3.800(a) motion. See Blocker v. State, 968 So.2d 686 (Fla. 2d DCA), review granted, 973 So.2d 1119, No. SC07-2292, 2007 WL 4864232 (Fla. Dec. 21, 2007).

Accordingly, we affirm the postconviction court’s denial order without prejudice to any right Mr. McNeil might have to file a timely and facially sufficient sworn motion under Florida Rule of Criminal Procedure 3.850. Any such motion will not be deemed successive.

Affirmed.

ALTENBERND, WHATLEY, and STRINGER, JJ., concur.