
    Donnie CALDWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1689.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2002.
    
      Appellant, pro se.
    Robert A. Butterworth, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

KAHN and LEWIS, JJ., concur; BENTON, J. concurs with opinion.

BENTON, J.,

concurring.

I concur. See Bush v. State, 785 So.2d 1238, 1238 (Fla. 4th DCA 2001) (declining to reach merits of vindictive sentencing claim on appeal of denial of motion under Florida Rule of Criminal Procedure 3.850); contra Fairweather v. State, 505 So.2d 653, 654-55 (Fla. 2d DCA 1987) (reaching merits of vindictive sentencing claim raised collaterally). See generally Prado v. State, 816 So.2d 1155, 1157 (Fla. 3d DCA) (holding on direct appeal that a presumption of vindictiveness arises when a trial judge who has participated in plea negotiations imposes a sentence in excess of what the state offered), notice of discretionary jurisdiction filed, No. SC02-1124 (Fla. May 15, 2002); Byrd v. State, 794 So.2d 671, 673 (Fla. 5th DCA 2001) (same), review granted, 817 So.2d 850 (Fla. Apr.12, 2002) (Table); McDonald v. State, 751 So.2d 56, 58-59 (Fla. 2d DCA 1999) (same); contra Morales v. State, 819 So.2d 831, 832 (Fla. 4th DCA), review granted, No. SC02-1152 (Fla. May 20, 2002).  