Heath v. State

968 So. 2d 625 (2007)

Ben R. HEATH, Appellant,
v.
STATE of Florida, Appellee.

No. 2D07-828.

District Court of Appeal of Florida, Second District.

October 24, 2007.

SILBERMAN, Judge.

Ben Heath challenges the order of the trial court summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Heath's motion contains two interrelated claims of ineffective assistance of counsel. The trial court denied the claims, correctly finding that the motion was facially insufficient because Heath failed to allege that, but for trial counsel's deficient performance, he would not have pleaded but rather would have proceeded to trial. See Borders v. State, 936 So. 2d 737, 738 (Fla. 2d DCA 2006) (citing Grosvenor v. State, 874 So. 2d 1176, 1182 (Fla.2004)).

We affirm the order of the trial court without prejudice to any right Heath might have to file a facially sufficient rule 3.850 motion raising the same claims. See Williams v. State, 844 So. 2d 700, 701 (Fla. 2d DCA 2003). Because the two-year time limitation for filing rule 3.850 motions expired while the present motion was pending, Heath may file a facially sufficient motion within thirty days from the date the mandate issues in this appeal, and the trial court shall consider the motion timely filed. See id.

Affirmed.

SALCINES and STRINGER, JJ., Concur.