Finan v. State , 787 So. 2d 64 ( 2001 )

787 So. 2d 64 (2001)

Erin Patrick FINAN, Appellant,
v.
STATE of Florida, Appellee.

No. 2D00-1507.

District Court of Appeal of Florida, Second District.

February 28, 2001.

Michael V. Giordano, of Wells & Giordano, Temple Terrace, for Petitioner.

Robert A. Butterworth, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Erin Patrick Finan appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Finan alleges that his habitual offender sentences are illegal and that counsel was ineffective for failing to preserve the issue for appellate review. He further argues that he is entitled to be resentenced within the guidelines because he was not noticed as a habitual felony offender prior to entering his pleas. We conclude that Finan is not entitled to guidelines sentences but may be entitled to withdraw his pleas. See State v. Wilson, 658 So. 2d 521 (Fla.1995).

Although Finan sought the alternative relief of withdrawing his pleas, his motion is facially insufficient because he did not allege that he would not have pleaded had he been aware that he faced habitual felony offender sentencing. See Newsome v. State, 704 So. 2d 213 (Fla. 2d DCA 1998). We therefore affirm the summary denial of his motion although we disagree with the trial court's reasoning. This affirmance is, however, without prejudice to Finan's right to file a facially sufficient motion. Because the time to file a motion pursuant to rule 3.850 expired while Finan's appeal was pending in this court, he shall have sixty days from the issuance of the mandate in this case to file an amended motion.

Affirmed.

WHATLEY, A.C.J., and NORTHCUTT and CASANUEVA, JJ., concur.