Ross v. State

586 So. 2d 509, 1991 Fla. App. LEXIS 13945, 1991 WL 196303

Opinion

PER CURIAM.

John Ross appeals the summary denial of his motion for reduction of sentence. We reverse.¹

Ross alleges that he agreed to plead to a charge of violating probation in exchange for a sentence of 2½' years, to run concurrently with an existing sentence from Pi-nellas County. Instead, the two sentences are consecutive. Neither the trial court’s order nor the record rebut this claim. Accordingly, further proceedings are necessary.

If Ross’s factual assertions are true, and the present sentence structure is merely the result of oversight, Ross would be entitled to receive the sentence promised him in return for the plea. Apart from that, however, Ross would not be entitled to enforce the plea agreement over the objection of the trial court. See, e.g., Lepper v. State, 451 So.2d 1020 (Fla. 1st DCA 1984).² We remand this case to the trial court with instructions to re-examine the record and determine whether valid reasons existed to deny Ross the sentence he claims to have been promised. In the event the trial court again denies the motion after remand, it should attach to its order any supporting documentation.

Reversed.

DANAHY, Acting C.J., and LEHAN and PATTERSON, JJ„ concur.

1 . The motion was filed pursuant to Florida Rule of Criminal Procedure 3.800(b). Ordinarily, an order denying mitigation of sentence is not appealable. Davenport v. State, 414 So.2d 640 (Fla. 1st DCA 1982). However, because the motion appears to us to seek correction of a sentencing error, we decline to dismiss the appeal. Cf. Williams v. State, 477 So.2d 35 (Fla. 2d DCA 1985).

2 . It may be that Ross has alleged facts which, if true, would entitle him to withdraw his plea. See, e.g., Humphries v. State, 563 So.2d 1124 (Fla. 2d DCA 1990). However, he has not asked to do so. Accordingly, our decision is without prejudice to Ross to seek relief pursuant to rule 3.850 if he so desires. The motion presently under review would not bar any such filing under the “successive motions" rule. Vann v. State, 569 So.2d 867 (Fla. 2d DCA 1990).