               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT



ROOSEVELT STEWART,                            )
                                              )
             Appellant,                       )
                                              )
v.                                            )        Case No. 2D15-1219
                                              )
STATE OF FLORIDA,                             )
                                              )
             Appellee.                        )
                                              )

Opinion filed May 18, 2016.

Appeal from the Circuit Court for Sarasota
County; Charles E. Roberts, Judge.

Howard L. Dimmig, II, Public Defender, and
Richard P. Albertine, Jr., Assistant Public
Defender, Bartow, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, for Appellee.


CASANUEVA, Judge.

             Roosevelt Stewart appeals his judgments and sentences following his no

contest plea for sale or delivery of cocaine within 1000 feet of a place of worship and

sale or delivery of cocaine. Pursuant to a negotiated plea agreement, Mr. Stewart was

sentenced to eight years in prison for both offenses and a three-year minimum
mandatory term for the first offense. The Public Defender filed an Anders1 brief, noting

that Mr. Stewart filed a motion to correct sentencing error pursuant to Florida Rule of

Criminal Procedure 3.800(b)(2). The motion argued that the three-year minimum

mandatory term for the offense of sale or delivery of cocaine within 1000 feet of a place

of worship was improper because no statutory authorization exists for imposition of a

minimum mandatory term for this offense. Mr. Stewart asked the trial court to strike the

minimum mandatory term from his sentence. The trial court failed to rule on the motion

within sixty days, and it is therefore deemed denied. See Fla. R. Crim. P.

3.800(b)(2)(B).

              Mr. Stewart is correct that the three-year minimum mandatory term is not

required by statute to be imposed for this offense. See § 893.13(1)(e), Fla. Stat. (2014).

However, the minimum mandatory term was part of his plea agreement and, although

he did not waive the right to challenge an illegal sentence based on the fact that it was

the result of a negotiated plea, see Haynes v. State, 106 So. 3d 481, 482 (Fla. 5th DCA

2013) (quoting Torbert v. State, 832 So. 2d 203, 205 (Fla. 4th DCA 2002)), a rule 3.800

motion was not the proper vehicle to challenge the minimum mandatory term. The Fifth

District outlined the proper procedure as follows:

              As the sentence was the product of a negotiated plea, the
              remedy is not to correct the illegal sentence, but rather a
              motion under Rule of Criminal Procedure 3.850 to set aside
              the plea, vacate the judgment and sentence, and reinstitute
              all charges pending against the defendant prior to entry of
              the plea.

106 So. 3d at 482.




              1
                  Anders v. California, 386 U.S. 738 (1967).


                                             -2-
              We therefore affirm the trial court's denial of Mr. Stewart's rule 3.800

motion without prejudice to his right to file an appropriate rule 3.850 motion within the

time remaining under rule 3.850(b).

              Affirmed.




SILBERMAN and CRENSHAW, JJ., Concur.




                                            -3-
