         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


VIRGIL O'KEITH STEWART,

             Appellant,

 v.                                                    Case No. 5D16-3564

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed May 26, 2017

3.801 Appeal from the Circuit Court
for Marion County,
Anthony M. Tatti, Judge.

James S. Purdy, Public Defender, and
Alexander J. Gilewicz, Assistant Public
Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Allison Leigh Morris,
Assistant Attorney General, Daytona
Beach, for Appellee.


PER CURIAM.

      Virgil Stewart appeals the summary denial of his motion seeking additional credit

for time served both in jail and in prison. Although the trial court properly concluded

Stewart’s motion was facially insufficient, it also denied Stewart’s claim on the merits.

This denial was error. The trial court should have allowed Stewart sixty days to amend
his motion. See Nazario v. State, 188 So. 3d 975, 976 (Fla. 5th DCA 2016) (holding that

when defendant files facially insufficient rule 3.801 motion, court must enter non-final,

non-appealable order allowing defendant sixty days to amend motion); see also Fla. R.

Crim. P. 3.850(e).

      We reverse the trial court’s summary denial order and remand to provide Stewart

sixty days to amend his motion.

      REVERSED and REMANDED with instructions.


PALMER, ORFINGER, and EVANDER, JJ., concur.




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