Pope v. State

911 So. 2d 237, 2005 Fla. App. LEXIS 15316, 2005 WL 2372752

Opinion

DAVIS, Judge.

Jeffery L. Pope appeals the trial court’s denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court denied the motion as moot, finding that the sentence that Pope challenged had been vacated and ordered that Pope be resentenced in accordance with Pope v. State, 884 So.2d 328 (Fla. 2d DCA 2004). Because Pope has not been resentenced, his motion is premature, not moot. Nevertheless, the trial court should have dismissed, and not denied, the motion. See Edwards v. State, 780 So.2d 286 (Fla. 1st DCA 2001). Therefore, we reverse the trial court’s order denying Pope’s rule 3.800(a) motion and remand for entry of an order of dismissal, which shall be without prejudice to any right Pope may have to refile his claim, if necessary, after resen-tencing.

Reversed and remanded with instructions.

VILLANTI and WALLACE, JJ„ Concur.