NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
EZEKIEL GANDY, III, )
)
Appellant, )
)
v. ) Case No. 2D17-3133
)
STATE OF FLORIDA, )
)
Appellee. )
________________________________ )
Opinion filed April 4, 2018.
Appeal from the Circuit Court for
Hillsborough County; Kimberly K.
Fernandez, Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, for Appellee.
NORTHCUTT, Judge.
Ezekiel Gandy filed a motion to correct illegal sentence pursuant to Florida
Rule of Criminal Procedure 3.800(a), claiming that his Criminal Punishment Code
scoresheet was inaccurate because its prior record section incorrectly listed offenses for
which he had not been convicted. The postconviction court denied the motion because
it would have required an evidentiary hearing. However, Gandy's claim would be
cognizable in a motion filed pursuant to Florida Rule of Criminal Procedure 3.850, and it
would be timely as such. See Thomas v. State,
149 So. 3d 159, 160 (Fla. 1st DCA
2014). Accordingly, we reverse and remand for the postconviction court to allow Gandy
the opportunity to raise the claim in a facially sufficient motion filed pursuant to Florida
Rule of Criminal Procedure 3.850, if he has not already done so. See
id.
Reversed and remanded with instructions.
SILBERMAN and MORRIS, JJ., Concur.
-2-
