Opinion
No. 91-02782.
October 4, 1991.
Appeal pursuant to Fla.R.App.P. 9.140(g) from the Circuit Court for Hillsborough County; Harry Lee Coe, III, Judge.
John Ross appeals the summary denial of his motion for reduction of sentence. We reverse.
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).
Ross alleges that he agreed to plead to a charge of violating probation in exchange for a sentence of 2 1/2 years, to run concurrently with an existing sentence from Pinellas 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). 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.
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).
Reversed.
DANAHY, Acting C.J., and LEHAN and PATTERSON, JJ., concur.