NOT FINAL UNTIL TIME EXPI RES 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 il legal sentence filed pursuant to Florida Rule of Criminal Procedure 3 .800(a). Because the postconviction court should have co nsidered 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 d ocument in his case- 2 - shows that all three offenses o ccurred on the same day, thereby rendering his sentences for the second and third charges illegal as a violati on of the prohibition against double jeopardy. The postconviction court denied the c laim 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 af fidavit showed that each sale occurred on a different date, the charging document contai ned a clerical error to which Burkhead implicitly cons ented 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 o ccurring on the same day must be brought via a rule 3.850 motion. See Coughlin v. S tate, 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 2 005). Additionally, the postconviction court erred in applying Bradle y 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 affi davit. 971 So. 2d at 961. Here, while the complaint affidavit was attached to the postcon viction court's order,

there is no indication in the record before this court that Bur khead stipulated to facts alleged in the charging affidavit. Therefore, the charging aff idavit does not conclusively

refute Burkhead's claim.- 3 - We also note that Burkhead's double jeopardy claim appears to b e facially insufficient because he fails to allege that the convictions al l 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 a bsence of clear legislative intent, "[t]he court must first determine whether t he 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 reman d, the postconviction court shall either permit Burk head a chance to amend his allega tions if the court determines that he can do so in good faith or the court shall a ttach records conclusively refuting Burkhead's claim.

Reversed and remanded.

CASANUEVA and CRENS HAW, JJ., Concur.