OLIN J. DEWBERRY, JR., APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Defendant's guideline sentence imposed after July 1, 1984 effective date for crimes committed before that date, without election option, is illegal and requires resentencing with choice of guidelines or non-guidelines sentencing.
A defendant whose crimes were committed before the July 1, 1984 effective date of sentencing guidelines but who was sentenced after that date without being given the option to elect or reject guidelines sentencing is entitled to resentencing with the choice of guidelines or non-guidelines sentencing.
[1] A defendant whose crimes were committed before the July 1, 1984 effective date of sentencing guidelines but sentenced thereafter without election option is entitled to re…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceDewberry committed crimes prior to July 1, 1984, but was not sentenced until September 7, 1984, after the effective date of new sentencing guidelines …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Rule 3.800(A) cases and more on FLexlaw
WIGGINTON, Judge.
Appellant appeals the trial court’s order denying his motion for post-conviction relief, or in the alternative, his motion to correct illegal sentence under Rule 3.800(a). On appeal, appellant argues that in denying the motion, the trial court overlooked his argument made pursuant to Smith v. State, 537 So. 2d 982 (Fla.1989), that his guideline sentence is illegal. The state concedes the point, asserting, that the trial court should have addressed the sentencing issue where the motion showed that appellant’s crimes were committed prior to the July 1, 1984, effective date as set by the supreme court in Smith, but he was not sentenced until September 7, 1984, following the new effective date, without being given the option of electing or not electing guidelines sentencing.
We agree with the parties’ positions and therefore reverse the trial court’s denial of appellant’s 3.850 motion and remand for resentencing. See Wahl v. State, 543 So. 2d 299 (Fla. 2d DCA 1989), review denied, 551 So. 2d 463 (Fla.1989). Upon remand, appellant shall have the option of affirmatively electing to be sentenced under the guidelines in effect at the time of resentencing, or to elect a non-guidelines scheme with the right to parole. Wahl; Wahl v. State, 568 So. 2d 1303 (Fla. 2d DCA 1990); Banks v. State, 548 So. 2d 723 (Fla. 1st DCA 1989).
REVERSED and REMANDED for further proceedings.
ERVIN and MINER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Paulo McBEAN v. State, 688 So. 2d 383 (Fla. 4th DCA 1997)…2d 824 (Fla. 4th DCA [*385] 1990), rev. denied, 576 So. 2d 287 (Fla.1991) (where defense witness gave alibi on direct examination, no error in permitting extensive cross-examination regarding failure to assert it at earlier hearing); McGee v. State, 570 So. 2d 1079 (Fla. 3d DCA 1990), rev. denied, 582 So. 2d 623 (Fla.1991) (where issue is self-defense, no error in permitting cross-examination about fact that statement given police after incident made no reference to a shot being fired before victim was stabbed…
-
Haines City Cmty. Dev. v. Leila Heggs, 647 So. 2d 855 (Fla. 2d DCA 1994)…in its review capacity over a county court. State ex rel. Garland v. City of West Palm Beach, 141 Fla. 244, 193 So. 297 (Fla. 1940); Levy v. Levy, 483 So. 2d 455 (Fla. 3d DCA), review denied, 492 So. 2d 1333 (Fla. 1986). As noted in McGee v. State, 570 So. 2d 1079, 1081 (Fla. 3d DCA 1990), review denied, 582 So. 2d 623 (Fla.1991), a district court of appeal cannot “decline to follow a supreme court opinion in the absence of a specific indication by the court itself that the case is no longer viable.” Since,…
-
Ospina v. State, 579 So. 2d 810 (Fla. 5th DCA 1991)…llenge to an illegal sentence may be brought at any time and a sentence that is entered pursuant to guidelines which had not been constitutionally enacted is an illegal sentence. Boland v. State, 571 So. 2d 518 (Fla. 2d DCA 1990); Dewberry v. State, 570 So. 2d 1079 (Fla. 1st DCA 1990); Davis v. State, 552 So. 2d 338 (Fla. 4th DCA 1989). In his 3.850 motion defendant also claims that the trial court did not afford [*812] him a right to “allocution” on the capital charge because the jury did not specifically fi…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Alphonso P. Smith v. State, 537 So. 2d 982 (Fla. 1989)
- Wahl v. State, 543 So. 2d 299 (Fla. 2d DCA 1989)
- Wahl v. State, 568 So. 2d 1303 (Fla. 2d DCA 1990)
- Miciah Banks v. State, 548 So. 2d 723 (Fla. 1st DCA 1989)