¶1Appellant, pro se.
¶2No appearance by the state.
¶3WOLF, Judge.
¶4Days appeals from an order summarily denying his motion for postconviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. Appellant alleges that his plea was not voluntary because of misinformation provided by his attorney concerning his eligibility for gaintime. There was no allegation by the appellant that he would not have entered the plea had he been given the correct information. Matthews v. State, 614 So.2d 25 (Fla. 1st DCA 1993). Without this allegation, the petition is deficient. Id. at 26.
¶5Since appellant may be able to properly allege reliance on the incorrect advice of counsel, our affirmance is without prejudice to appellant to pursue a subsequent 3.850 motion on the grounds of ineffective assistance of counsel.
¶6WEBSTER, J., concurs.
¶7BOOTH, J., specially concurring with written opinion.
¶8BOOTH, Judge, specially concurring.
¶9I agree that the motion is fatally defective on the ground stated by the majority. On that basis we affirm the trial court's order. It should not be inferred from the "without prejudice" language of the opinion that the petition is otherwise sufficient.