Opinion
No. 90-2400.
August 5, 1991.
An Appeal from the Circuit Court for Holmes County; N. Russell Bower, Judge.
James D. Durden, pro se.
No appearance for appellee.
Appellant appeals the trial court's summary denial of his motion for post-conviction relief, filed pursuant to Rule 3.850, Fla.R.Crim.P., in which he raised two issues: (1) that the sentence imposed by the trial court exceeded the agreed-upon guideline term; and (2) that he was improperly ordered to pay costs and restitution, without the court having provided prior notice or determining his ability to pay.
We affirm the trial court's denial of the first issue. The record indicates that appellant agreed to a guideline sentence, and that the guidelines in this case recommended a sentence of 3 1/2 to 4 1/2 years incarceration. The trial court sentenced appellant to a split sentence of three years incarceration followed by 15 years probation. Because the incarcerative portion of appellant's sentence fell within the permitted range of the guidelines and the total sanction fell within the maximum term provided by general law, the sentence did not exceed the guidelines or go beyond the terms of the negotiated plea. Rule 3.701(d)(12), Fla. R.Crim.P.
We reverse and remand the denial of the second issue, with directions that the trial court either attach to his order copies of the files and records conclusively showing that the appellant is entitled to no relief, or take such further action as is required by Rule 3.850.
BARFIELD, J., and CAWTHON, Senior Judge, concur.