Filing the Wrong Motion Concerning An Ambiguous Plea Agreement
X appeals the denial of his postconviction motion to correct an illegal sentence, which he filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm because Mr. X must address this issue with a motion filed pursuant to Florida Rule of Criminal Procedure 3.850.
Mr. X entered into a negotiated plea agreement concerning a violation of probation in this case in January 1999.
The written plea agreement, although not clear on its face, appears to support Mr. X's claim that he was promised a sentence of 8 1/2 years' imprisonment, with 5 years' credit for prior prison time, i.e., a net sentence of 3 1/2 years' imprisonment. the actual sentence is an 8 1/2 -year term of imprisonment with a check in the box for prison credit.
Mr. X'smotion states that the Department of Corrections has given him substantially less credit than 5 years, apparently because the Department has forfeited some of his gain time.
The order on appeal instructs Mr. X to address his gain time issues to the Department. Although that general advice may be correct, we are inclined to believe that Mr. X's issue does not involve a calculation of gain time.
Instead, he is raising an issue involving his plea agreement, claiming that he was promised more prison credit by the trial court than the Department is now providing.
He either wishes to enforce or withdraw his plea. See Foldi v. State, 695 So. 2d 886 (Fla. 2d DCA 1997); Davis v. Singletary, 659 So. 2d 1126 (Fla. 2d DCA 1995).
We conclude that a rule 3.800(a) motion is not the proper pleading to raise this factual issue or to provide relief concerning an ambiguous plea agreement. the sentence on review is facially legal. Accordingly, we affirm without prejudice to Mr. X's right to file a timely motion pursuant to rule 3.850.