Darden v. State , 588 So. 2d 275 ( 1991 )

588 So. 2d 275 (1991)

Samuel DARDEN, Appellant,
v.
STATE of Florida, Appellee.

No. 91-02366.

District Court of Appeal of Florida, Second District.

October 23, 1991.

FRANK, Judge.

Samuel Darden has untimely appealed from the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The order denying his motion, however, failed to inform him of his right to appeal in thirty days. Thus, we have granted him a belated appeal. Only one of his two allegations may have merit, i.e., whether his sentence for battery on a law enforcement officer exceeds the statutory maximum.

Darden pleaded guilty to certain charges including battery on a law enforcement officer. He alleged that he was sentenced to five and one-half years in prison for that offense although the statutory maximum is five years. §§ 775.082(3)(d), 784.07, Fla. Stat. (1989). The allegation that his sentence is illegal, if true, would entitle him to relief. His plea to an illegal sentence is immaterial. See Williams v. State, 500 So. 2d 501 (Fla. 1986); Griner v. State, 524 So. 2d 487 (Fla. 2d DCA 1988).

The trial court failed to attach the written sentences or any other portions of the record in refutation of Darden's allegation. Accordingly, we remand for further proceedings the single question of whether his sentence exceeds the statutory maximum. If the court again denies the motion, it should attach portions of the record refuting Darden's contention. Otherwise, the court should correct the sentence on the charge of battery on a law enforcement officer limited to the statutory maximum. The summary denial of the motion in all other respects is affirmed. Any party aggrieved by the subsequent action of the trial court must file a notice of appeal within thirty days in order to obtain further appellate review.

CAMPBELL, A.C.J., and THREADGILL, J., concur.