JOHN EDWARD ROSS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that if a defendant's factual assertions regarding a promised sentence are true and the discrepancy is due to oversight, the defendant may be entitled to the promised sentence.
[1] A defendant may be entitled to enforcement of a plea agreement if the sentence structure is the result of oversight and not a valid reason for denial by the trial court.
[2] An order denying mitigation of sentence is generally not appealable, but may be reviewed if it seeks correction of a sentencing error.
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Join FLexlaw to unlock all legal intelligenceJohn Ross appealed the summary denial of his motion for sentence reduction, alleging he was promised a sentence of 2½ years concurrent with another se…
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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. . 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).
. 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).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Lepper v. State, 451 So. 2d 1020 (Fla. 1st DCA 1984)
- Clark v. State, 414 So. 2d 640 (Fla. 5th DCA 1982)
- Humphries v. State, 563 So. 2d 1124 (Fla. 2d DCA 1990)
- Vann v. State, 569 So. 2d 867 (Fla. 2d DCA 1990)
- Williams v. State, 477 So. 2d 35 (Fla. 2d DCA 1985)