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

                                             IN THE DISTRICT COURT OF APPEAL

                                             OF FLORIDA

                                             SECOND DISTRICT


PHILLIP BURKHEAD,                   )
                                    )
           Appellant,               )
                                    )
v.                                  )                  Case No. 2D14-2562
                                    )
STATE OF FLORIDA,                   )
                                    )
           Appellee.                )
___________________________________ )

Opinion filed January 14, 2015.

Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Manatee County; Charles E. Roberts,
Judge.

Phillip Burkhead, pro se.


KHOUZAM, Judge.

             Phillip Burkhead appeals the denial of his motion to correct illegal

sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the

postconviction court should have considered the motion as filed under rule 3.850 and

because it also failed to attach records conclusively refuting the claim, we reverse and

remand.

             Burkhead entered an open plea of no contest to three counts of sale of

oxycodone. In his motion, Burkhead alleged that the charging document in his case
shows that all three offenses occurred on the same day, thereby rendering his

sentences for the second and third charges illegal as a violation of the prohibition

against double jeopardy. The postconviction court denied the claim under rule 3.800(a).

Relying on Bradley v. State, 971 So. 2d 957 (Fla. 5th DCA 2007), approved by 3 So. 3d

1168 (Fla. 2009), the court found that because the complaint affidavit showed that each

sale occurred on a different date, the charging document contained a clerical error to

which Burkhead implicitly consented when he entered his plea.

              As a threshold matter, Burkhead's double jeopardy claim that he could not

have been convicted of (and sentenced for) all three offenses occurring on the same

day must be brought via a rule 3.850 motion. See Coughlin v. State, 932 So. 2d 1224,

1226 (Fla. 2d DCA 2006) (noting that "rule 3.800(a) is limited to claims that a sentence

itself is illegal, without regard to the underlying conviction"). Because Burkhead's

motion was filed within two years of his judgment and sentence becoming final and

included the proper oath, the postconviction court should have treated his motion as if it

had been filed under rule 3.850. See Riviere v. State, 965 So. 2d 845, 845 (Fla. 2d

DCA 2007); Snell v. State, 890 So. 2d 1292, 1292 (Fla. 2d DCA 2005).

              Additionally, the postconviction court erred in applying Bradley to these

facts. In Bradley, the court relied on the plea transcript to demonstrate that the

defendant stipulated to the facts alleged in the complaint affidavit. 971 So. 2d at 961.

Here, while the complaint affidavit was attached to the postconviction court's order,

there is no indication in the record before this court that Burkhead stipulated to facts

alleged in the charging affidavit. Therefore, the charging affidavit does not conclusively

refute Burkhead's claim.




                                            -2-
              We also note that Burkhead's double jeopardy claim appears to be facially

insufficient because he fails to allege that the convictions all stemmed from the same

criminal episode. See, e.g., Sanders v. State, 101 So. 3d 373, 374 (Fla. 1st DCA 2012)

(observing that when analyzing a double jeopardy claim in the absence of clear

legislative intent, "[t]he court must first determine whether the offenses occurred in the

same criminal episode").

              Accordingly, we reverse and remand for the postconviction court to

consider Burkhead's motion as filed under rule 3.850. On remand, the postconviction

court shall either permit Burkhead a chance to amend his allegations if the court

determines that he can do so in good faith or the court shall attach records conclusively

refuting Burkhead's claim.

              Reversed and remanded.



CASANUEVA and CRENSHAW, JJ., Concur.




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