NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING 

MOTION AND, IF FILED, DETERMINED 

IN THE DISTRICT COURT OF APPEAL 

OF FLORIDA 

SECOND DISTRICT 

PHILLIP BURKHEAD, ) 

 ) 

 Appellant, ) 

 ) 

v. ) Case No. 2D14-2562 

 ) 

STATE OF FLORIDA, ) 

 ) 

 Appellee. ) 

___________________________________ ) 

Opinion filed January 14, 2015. 

Appeal pursuant to Fla. R. App. P. 

9.141(b)(2) from the Circuit Court for 

Manatee County; Charles E. Roberts, 

Judge. 

Phillip Burkhead, pro se. 

KHOUZAM, Judge. 

Phillip Burkhead appeals the denial of his motion to correct illegal 

sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the 

postconviction court should have considered the motion as filed under rule 3.850 and 

because it also failed to attach records conclusively refuting the claim, we reverse and 

remand. 

Burkhead entered an open plea of no contest to three counts of sale of 

oxycodone. In his motion, Burkhead alleged that the charging document in his case 
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shows that all three offenses occurred on the same day, thereby rendering his 

sentences for the second and third charges illegal as a violation of the prohibition 

against double jeopardy. The postconviction court denied the claim under rule 3.800(a). 

Relying on Bradley v. State, 971 So. 2d 957 (Fla. 5th DCA 2007), approved by 3 So. 3d 

1168 (Fla. 2009), the court found that because the complaint affidavit showed that each 

sale occurred on a different date, the charging document contained a clerical error to 

which Burkhead implicitly consented when he entered his plea. 

As a threshold matter, Burkhead's double jeopardy claim that he could not 

have been convicted of (and sentenced for) all three offenses occurring on the same 

day must be brought via a rule 3.850 motion. See Coughlin v. State, 932 So. 2d 1224, 

1226 (Fla. 2d DCA 2006) (noting that "rule 3.800(a) is limited to claims that a sentence 

itself is illegal, without regard to the underlying conviction"). Because Burkhead's 

motion was filed within two years of his judgment and sentence becoming final and 

included the proper oath, the postconviction court should have treated his motion as if it 

had been filed under rule 3.850. See Riviere v. State, 965 So. 2d 845, 845 (Fla. 2d 

DCA 2007); Snell v. State, 890 So. 2d 1292, 1292 (Fla. 2d DCA 2005). 

Additionally, the postconviction court erred in applying Bradley to these 

facts. In Bradley, the court relied on the plea transcript to demonstrate that the 

defendant stipulated to the facts alleged in the complaint affidavit. 971 So. 2d at 961. 

Here, while the complaint affidavit was attached to the postconviction court's order, 

there is no indication in the record before this court that Burkhead stipulated to facts 

alleged in the charging affidavit. Therefore, the charging affidavit does not conclusively 

refute Burkhead's claim. 
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We also note that Burkhead's double jeopardy claim appears to be facially 

insufficient because he fails to allege that the convictions all stemmed from the same 

criminal episode. See, e.g., Sanders v. State, 101 So. 3d 373, 374 (Fla. 1st DCA 2012) 

(observing that when analyzing a double jeopardy claim in the absence of clear 

legislative intent, "[t]he court must first determine whether the offenses occurred in the 

same criminal episode"). 

Accordingly, we reverse and remand for the postconviction court to 

consider Burkhead's motion as filed under rule 3.850. On remand, the postconviction 

court shall either permit Burkhead a chance to amend his allegations if the court 

determines that he can do so in good faith or the court shall attach records conclusively 

refuting Burkhead's claim. 

Reversed and remanded. 

CASANUEVA and CRENSHAW, JJ., Concur.