Murray v. State

566 So.2d 30 (1990)

Paul Terry MURRAY, Appellant,
v.
STATE of Florida, Appellee.

No. 88-1393.

District Court of Appeal of Florida, First District.

August 16, 1990. Rehearing Denied September 20, 1990.

Barbara M Linthicum, Public Defender, and Phil Patterson and Lawrence M. Korn, Asst. Public Defenders, Tallahassee, for appellant.

Robert Butterworth, Atty. Gen., and A.E. Pooser, IV and Edward C. Hill, Jr., Asst. Attys. Gen., Tallahassee, for appellee.

PER CURIAM.

Paul Terry Murray has appealed from judgment and sentence imposed following entry of a guilty plea to attempted capital sexual battery. We affirm without discussion as to the first three of the four issues raised by Murray in his pro se initial brief.

Murray alleges as the fourth issue that he should be allowed to withdraw his guilty plea based on the trial court's failure to comply with the terms of his plea agreement. However, Murray concedes that he did not move to withdraw the plea at the time of sentencing. The issue is therefore not cognizable on direct appeal. Duhart v. State, 548 So.2d 302, 303 (Fla. 5th DCA 1989); Gill v. State, 550 So.2d 72, 73 (Fla. 2d DCA 1989). We therefore dismiss the appeal as to this issue, without prejudice to filing in the trial court either a motion to withdraw the plea or a motion under Florida Rule of Criminal Procedure 3.850 to vacate his sentence. See Gill at 73.

Affirmed in part, dismissed in part.

BOOTH, JOANOS and MINER, JJ., concur.