SALTERS v. STATE (2001)

Eldred Salters appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion.   The motion is styled as a rule 3.850 motion and, as such, is untimely.   However, Salters' meritorious claim is cognizable under Florida Rule of Criminal Procedure 3.800, and is not time-barred.   We reverse the order of the trial court on this single meritorious issue and affirm it in all other respects.

Salters entered pleas in two cases in 1996.   The trial court pronounced him a habitual offender and sentenced him to prison for ten years in case number 96-08502.   The court then suspended his sentence, placing him on two years' community control and two years' probation.   He violated the terms of his supervision and was sentenced as a habitual offender to a ten-year prison sentence.

Salters' initial sentence was not a habitual offender sentence.   Consequently, unless his original sentence was the result of a negotiated plea, he must be sentenced pursuant to the sentencing guidelines.   See Pankhurst v. State, 796 So.2d 618 (Fla. 2d DCA 2001).

Affirmed in part, reversed in part, and remanded.

THREADGILL, Acting Chief Judge.

FULMER and GREEN, JJ., concur.