VIRGIL KEITH STEWART v. STATE OF FLORIDA (2017)

District Court of Appeal of Florida, Fifth District.

VIRGIL O'KEITH STEWART, Appellant, v. STATE OF FLORIDA, Appellee.

Case No. 5D16-3564

Decided: May 26, 2017

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.

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.

PER CURIAM.

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

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