Dunbar v. State

May 23, 2001
2D01-944
Reporters:
,
Before:
Silberman, Green, Davis

SILBERMAN, Judge.

Ahmad Dunbar ‍‌​‌‌‌‌​‌​‌​​‌‌​​‌​‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌‌​‌​​‌‌‌‌​​​‌‌​‌​‌​‌‌‌‌‌​‌‌​‌​​​​‌‌​​‌​​​​​‌‌​‌‌​​​​​‌​​​‌​​‌‍timely appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. He entered into a negotiated plea and was sentenced to the bottom of the 1995 sentencing guidelines. He seeks resentencing under the 1994 guidelines pursuant to Heggs v. State, 759 ‍‌​‌‌‌‌​‌​‌​​‌‌​​‌​‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌‌​‌​​‌‌‌‌​​​‌‌​‌​‌​‌‌‌‌‌​‌‌​‌​​​​‌‌​​‌​​​​​‌‌​‌‌​​​​​‌​​​‌​​‌‍So.2d 620 (Fla.2000). Because Dunbar‘s sentence is not a departure under the 1994 guidelines, he is not entitled to be resentenced. See Heggs, 759 So.2d at 627.

Dunbar may, however, be entitled to withdraw his plea. The motion that he filed in the trial court was facially insufficient to obtain ‍‌​‌‌‌‌​‌​‌​​‌‌​​‌​‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌‌​‌​​‌‌‌‌​​​‌‌​‌​‌​‌‌‌‌‌​‌‌​‌​​​​‌‌​​‌​​​​​‌‌​‌‌​​​​​‌​​​‌​​‌‍such relief. The motion fails to state that Dunbar would not have entered a plea had he known that his sentence was not going to be at the bottom of the sentencing guidelines. See Wilson v. State, 760 So.2d 237 (Fla. 2d DCA 2000). We also note that although ‍‌​‌‌‌‌​‌​‌​​‌‌​​‌​‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌‌​‌​​‌‌‌‌​​​‌‌​‌​‌​‌‌‌‌‌​‌‌​‌​​​​‌‌​​‌​​​​​‌‌​‌‌​​​​​‌​​​‌​​‌‍Dunbar alleged that his plea was involuntary, he did not seek to withdraw his plea in the trial court.

We therefore affirm the denial of Dunbar‘s motion. This affirmance is without prejudice to Dunbar‘s right to file a facially sufficient motion to withdraw his plea under rule 3.850 if he wishes ‍‌​‌‌‌‌​‌​‌​​‌‌​​‌​‌‌​‌‌‌‌​‌​‌‌‌‌​‌‌‌​‌​​‌‌‌‌​​​‌‌​‌​‌​‌‌‌‌‌​‌‌​‌​​​​‌‌​​‌​​​​​‌‌​‌‌​​​​​‌​​​‌​​‌‍to do so. The motion will not be considered successive. See Sidell v. State, 787 So.2d 139 (Fla. 2d DCA 2001).

Affirmed.

GREEN, A.C.J., and DAVIS, J., Concur.