State v. Philip Kogan , 2016 Fla. App. LEXIS 7304 ( 2016 )


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  •          IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FIFTH DISTRICT
    NOT FINAL UNTIL TIME EXPIRES TO
    FILE MOTION FOR REHEARING AND
    DISPOSITION THEREOF IF FILED
    STATE OF FLORIDA,
    Appellant,
    v.                                                      Case No. 5D15-3174
    PHILIP KOGAN,
    Appellee.
    ________________________________/
    Opinion filed May 13, 2016
    Appeal from the Circuit Court
    for Orange County,
    Alan S. Apte, Judge.
    Pamela Jo Bondi, Attorney General,
    Tallahassee, and Marjorie Vincent-Tripp,
    Assistant Attorney General, Daytona
    Beach, for Appellant.
    Carli Citraro, of Nexus Trial Group, Orlando,
    for Appellee.
    EDWARDS, J.
    The State appeals the circuit court's order granting Philip Kogan's motion to correct
    illegal sentence. The State contends that because Kogan pleaded no contest pursuant
    to a negotiated agreement, he was required to seek relief by filing a motion to withdraw
    his plea pursuant to Florida Rule of Criminal Procedure 3.850.
    The State charged Kogan with one count of felony battery, which required as a
    predicate, one prior battery conviction against Kogan. On February 3, 2015, pursuant to
    a negotiated plea agreement, Kogan pleaded no contest and was sentenced to one year
    of probation. On July 8, 2015, Kogan's probation officer filed an affidavit alleging that
    Kogan violated the terms of his probation. On July 31, 2015, Kogan filed a rule 3.170(l)
    motion to withdraw his plea, alleging that the State did not provide a factual basis to
    reclassify his battery from a first-degree misdemeanor to a third-degree felony. Kogan
    also filed a rule 3.800 motion to correct illegal sentence.
    After a hearing where the trial court determined the State failed to provide a factual
    basis for the prior battery, the court withdrew Kogan's plea and sentence and sent the
    case back to the original trial division. We reverse.
    A rule 3.850 motion is the proper vehicle to attack the factual basis underlying the
    sentence imposed as the result of a defendant's plea. See State v. Mancino, 
    705 So. 2d 1379
    , 1380-81 (Fla. 1998). A "factually erroneous sentence" is properly challenged by a
    rule 3.850 motion because the adequacy of a plea colloquy is not an allegation that a
    sentence is illegal. See Nowlin v. State, 
    639 So. 2d 1050
    , 1051-52 (Fla. 1st DCA 1994).
    Accordingly, we reverse without prejudice to Kogan to file a rule 3.850 motion.
    REVERSED.
    LAWSON, C.J. and PALMER, JJ., concur.
    2
    

Document Info

Docket Number: 5D15-3174

Citation Numbers: 190 So. 3d 268, 2016 Fla. App. LEXIS 7304, 2016 WL 2760113

Judges: Edwards, Lawson, Palmer

Filed Date: 5/13/2016

Precedential Status: Precedential

Modified Date: 10/19/2024