Bobbio v. State

PER CURIAM.

Edmundo Bobbio has appealed from the summary denial of his motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm in part, and reverse in part.

In June 1990, Bobbio pled guilty to attempted murder, and was sentenced to 15 years incarceration plus 10 years probation and restitution. He did not appeal. Bob-bio filed the instant motion in November 1991, arguing ineffective assistance of counsel and an illegal sentence, based on an alleged departure from the sentencing guidelines without written reasons therefor. The trial court summarily denied the motion, finding only that the allegations of ineffective assistance were without merit. The alleged illegal sentence was not addressed.

The trial court correctly denied the motion as to the allegations of ineffective assistance of counsel. However, because Bobbio’s allegation of an illegal sentence, if true, could entitle him to relief, the trial court was obligated either to attach those portions of the files and records such as a plea agreement, if any, conclusively refuting that allegation, or to hold further proceedings on the motion in accordance with Rule 3.850. We therefore reverse the denial of the motion only as to the issue of an illegal sentence, and remand for further consideration of that issue. The order is in all other respects affirmed.

«TOANOS, C.J., and BOOTH and MINER, JJ., concur.