Opinion
No. 89-1488.
September 27, 1990.
An Appeal from the Circuit Court for Okaloosa County; Erwin Fleet, Judge.
Barbara M. Linthicum, Public Defender, Michael J. Minerva, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., Laura Rush, Asst. Atty. Gen., for appellee.
This is an appeal from the denial of the appellant's motion to modify sentence. The motion alleged that the sentence was too severe. Such a motion for mitigation of sentence invokes the court's discretionary authority under Rule 3.800(b), Florida Rules of Criminal Procedure. Although at the hearing on the motion the appellant's testimony included reference to facts indicating that the appellant may have been misled in the entry of his negotiated pleas of no contest, the only motion properly before the court was the motion for sentence reduction. There was no motion for plea withdrawal before the court.
We, therefore, affirm but without prejudice to the appellant's right to file a 3.850 motion properly raising any issues regarding the voluntariness of his plea. See Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981).
We do, however, agree with appellant that the five-year sentence on count IV must be reversed and remanded for resentencing because the offense charged is only a second degree misdemeanor.
AFFIRMED in part and reversed in part and remanded.
WIGGINTON and ZEHMER, JJ., concur.