
    Willie Charles DIXON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3288.
    District Court of Appeal of Florida, Second District.
    March 9, 2007.
   VILLANTI, Judge.

Willie Charles Dixon appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the postconviction court should have dismissed the motion as legally insufficient, we reverse and remand with an instruction to do so.

On May 31, 2006, Dixon filed his motion to correct illegal sentence, claiming that his sentence did not effectuate the intent of his plea bargain. In summarily denying the motion, the postconviction court found Dixon’s claim was not cognizable in a rule 3.800(a) motion because he did not allege his sentence was illegal. The postconviction court also summarily found that Dixon’s sentence did, in fact, effectuate the intent of his plea.

However, Dixon’s motion is facially insufficient because it did not affirmatively allege that the court records demonstrate on their face an entitlement to relief. See Fla. R.Crim. P. 3.800(a); Livingston v. State, 944 So.2d 1254 (Fla. 2d DCA 2006); Stathas v. State, 852 So.2d 881 (Fla. 2d DCA 2003). Therefore, the postconviction court should have dismissed the motion, rather than deny it on its merits. See Livingston, 944 So.2d at 1254; Poole v. State, 935 So.2d 643, 644 (Fla. 2d DCA 2006). Accordingly, we reverse and remand for entry of an order dismissing Dixon’s motion. The dismissal shall be without prejudice to any right Dixon may have to file a facially sufficient motion under rule 3.800(a) or a timely, facially sufficient motion under rule 3.850.

Reversed and remanded with instructions.

ALTENBERND, J., Concurs.

SILBERMAN, J., Concurs specially.

SILBERMAN, Judge, Specially

concurring.

I concur in the majority decision but write to address the postconviction court’s finding that Dixon’s “sentence effectuates the intent of the plea bargain.”

In 2004, Dixon admitted to violating his probation, understanding that he would be imprisoned for no more than five years. After he was sentenced, he learned that he would serve more than five years in prison due to the loss of gain time. Dixon sought and obtained relief from the postconviction court which found, in an order entered in April 2005, that he was entitled to resen-tencing in a manner that effectuated the intent of the plea agreement. After the court resentenced Dixon, he filed his present rule 3.800(a) motion, asserting that the new sentence again does not effectuate the plea agreement because, due to the loss of gain time, he will serve more than five years in prison.

In denying relief, the postconviction court found that the sentence met the intent of the plea bargain. However, the documents contained in our record do not reflect that Dixon will, in fact, be imprisoned for no more than the agreed-upon five years. Thus, because Dixon’s motion is facially insufficient and because the record does not appear to support the post-conviction court’s finding, I agree that reversal is required.  