Opinion
No. 4D04-3761.
February 2, 2005.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Hubert R. Lindsey, Judge; L.T. Case Nos. 00-11011 CFA02, 03-3100 CFB02, 03-3237 CFA02 03-9215 CFA02.
Fabian Smith, Arcadia, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
Fabian Smith appeals the trial court's order summarily denying his "motion for clarification." In the motion, Smith raised a legally sufficient ground for postconviction relief as he alleged the trial court failed to impose concurrent sentences against him, as specified both in Smith's plea agreement and the court's oral statements. However, Smith did not state in his motion that he was seeking relief pursuant to Florida Rule of Criminal Procedure 3.850, nor did he include in his motion the information required by 3.850(c). Thus, Smith's motion was facially insufficient.
The trial court's denial should have been without prejudice to Smith refiling a motion that complies with the rule. See, e.g., Jones v. State, 708 So.2d 1045 (Fla. 4th DCA 1998); Thomas v. State, 686 So.2d 699 (Fla. 4th DCA 1996).
We affirm without prejudice to Smith refiling an amended motion in the trial court that conforms to the requirements of Rule 3.850.
WARNER, GROSS and MAY, JJ., concur.