Raines v. State

625 So. 2d 104 (1993)

Joseph RAINES, Appellant,
v.
STATE of Florida, Appellee.

No. 93-1090.

District Court of Appeal of Florida, First District.

October 12, 1993.

Joseph Raines, pro se, for appellant.

No appearance, for appellee.

PER CURIAM.

Joseph Raines appeals an order denying his motion for post conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. The motion raises two grounds for relief: (1) the trial court erred in sentencing Raines to 35 years in prison while sentencing his co-defendant, who also entered guilty pleas to the charges, to only 28 years, although the recommended guidelines sentence was also 22 to 27 years; and (2) the trial court erred in imposing a departure sentence without providing a written reason for doing so. The motion refers to an attached Memorandum of Law, which includes a statement of facts and arguments in support of the two grounds for relief.

The motion is facially insufficient in several respects. Among other things, it does not state whether there was an appeal from Raines's judgment or sentences; it incorporates the memorandum of law containing the factual allegations that form the basis of the relief sought, but which memorandum is not under oath; and the memorandum mentions that Raines entered guilty pleas but fails to indicate whether the pleas or sentences were pursuant to the terms of a negotiated plea agreement and the contents thereof. Peavy v. State, 599 So. 2d 234 (Fla. 1st DCA 1992); Young v. State, 585 So. 2d 1184 (Fla. 5th DCA 1991); Daniels v. State, 450 So. 2d 601 (Fla. 4th DCA 1984). However, because the circuit court did not rule the motion to be facially insufficient, we affirm with leave for Raines to file an amended motion, if he so desires.

AFFIRMED.

ZEHMER, C.J., and BOOTH and WOLF, JJ., concur.