Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT REO R. WESTON, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D22-1216 February 3, 2023 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pasco County; Kimberly Campbell, Judge. VILLANTI, Judge. Reo Weston appeals an order dismissing his motion to correct sentencing error filed under Florida Rule of Criminal Procedure 3.800(b). We reverse and remand for the postconviction court to consider Weston's motion under rule 3.800(a). Weston entered open pleas to drug offenses in two cases in exchange for a ten-year sentencing cap, and the trial court sentenced him as a habitual felony offender (HFO) to a total of ten years' imprisonment in both cases. Weston did not appeal, but he filed a rule 3.800(a) motion that was granted after the State conceded error. At a sentencing hearing on October 11, 2019, the trial court resentenced Weston to a total of ten years' imprisonment but without the HFO designation. The court awarded Weston 1282 days of jail "credit for time incarcerated before imposition of this sentence." The court did not mark the box for prison credit which would have "allowed credit for all time previously served on this count in the Department of Corrections prior to resentencing." On February 28, 2022, Weston filed a rule 3.800(a) motion arguing that his sentence was illegal because it failed to provide for prison credit and that the award of jail time credit failed to comport with section 921.161(1), Florida Statutes (2019), and the Florida Constitution. Then, on March 9, 2022, Weston filed a notice asking the court to strike his rule 3.800(a) motion and filed a rule 3.800(b) motion seeking the same relief. The postconviction court struck Weston's rule 3.800(a) motion and dismissed his rule 3.800(b) motion as untimely. The court also found that it could not treat the rule 3.800(b) motion as filed under rule 3.800(a) because it had stricken the rule 3.800(a) motion. The court further concluded that the motion was subject to dismissal under rule 3.800(a) because Weston had not demonstrated why the claim was not raised in one of his prior rule 3.800(a) motions. In support of this conclusion, the court cited Riechmann v. State, 966 So. 2d 298, 305 (Fla. 2007), in which the supreme court held that a defendant must demonstrate why a claim raised in a successive rule 3.850 motion was not previously raised, and also cited Florida Rule of Criminal Procedure 3.850(h)(2), which provides, in pertinent part: [A] court may dismiss a second or successive motion if the court finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the defendant or the attorney to assert those grounds in a prior motion constituted an abuse of the 2 procedure or there was no good cause for the failure of the defendant or defendant's counsel to have asserted those grounds in a prior motion. The postconviction court erred in applying Riechmann and rule 3.850(h)(2) to this case. Unlike rule 3.850(h)(2), rule 3.800(a)(2) provides that a court may dismiss a second or successive motion only if it finds that the motion fails to allege new or different grounds and the prior determination was on the merits. Rule 3.800(a)(2) does not require a defendant to demonstrate why a new and different claim was not previously raised. "[A] claim for credit for prison time is properly raised in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a)." Curtis v. State, 197 So. 3d 135, 136 (Fla. 2d DCA 2016) (citing Calderon v. State, 138 So. 3d 589, 589 (Fla. 2d DCA 2014)). Although Weston requested that the postconviction court strike his rule 3.800(a) motion and address his prison credit claim under rule 3.800(b), "when a movant files a properly pleaded postconviction claim but incorrectly styles the postconviction motion in which it is raised, the postconviction court must treat the claim as if it had been filed in an appropriately styled motion." Id. (citing Gill v. State, 829 So. 2d 299, 300 (Fla. 2d DCA 2002)). Accordingly, we reverse and remand for the postconviction court to consider Weston's motion as filed under rule 3.800(a). Reversed and remanded. KELLY and LABRIT, JJ., Concur. Opinion subject to revision prior to official publication. 3