FRANK OSPINA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frank Ospina appeals the summary denial of his sixth Rule 3.850 post-conviction motion, arguing illegal sentencing under unconstitutional guidelines and ineffective assistance of counsel. The court reverses and remands on the sentencing issue but affirms the denial on the other two grounds as procedurally barred.
The trial court erred in summarily denying the sentencing challenge because a sentence entered under guidelines not constitutionally enacted is an illegal sentence that may be challenged at any time, and Ospina is entitled to a hearing on whether he was illegally sentenced on the non-capital counts. The other two grounds were properly denied as procedurally barred under Rule 3.850 because the motion was untimely and successive.
[1] A challenge to an illegal sentence may be brought at any time, and a sentence entered pursuant to guidelines that were not constitutionally enacted constitutes an illegal…
[2] Sentencing guidelines were constitutionally invalid prior to July 1, 1984, entitling a defendant to resentencing as if the guidelines had never been enacted if their offe…
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Join FLexlaw to unlock all legal intelligence“A challenge 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.”
Establishes that sentences under unconstitutional guidelines are illegal and not subject to Rule 3.850 procedural bars, allowing Ospina's challenge despite the untimeliness and successive nature of his motion.
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Join FLexlaw to unlock all legal intelligenceOspina was convicted of one count of capital sexual battery and two counts of sexual battery. He was sentenced to life imprisonment with a mandatory 2…
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DIAMANTIS, Judge.
Defendant appeals the summary denial of his sixth motion for post-conviction relief under Rule 3.850 of the Florida Rules of Criminal Procedure. Defendant’s motion raises three grounds for relief. We conclude that the trial court’s summary denial of one of the grounds was error and therefore reverse and remand for a hearing on this matter. However, we hold that the trial court properly denied the motion on the other two grounds and affirm on these issues.
Defendant was convicted of one count of capital sexual battery in violation of section 794.011(2) of the Florida Statutes (1983), and two counts of sexual battery, both in violation of section 794.01l(4)(c) of the Florida Statutes (1983). The trial court sentenced defendant to life imprisonment with a mandatory twenty-five years without parole on Count I, and thirty years imprisonment on each of the remaining two counts, to run concurrently with the sentence imposed in Count I. Defendant’s judgment and sentence were affirmed without opinion in Ospina v. State, 494 So. 2d 495 (Fla. 5th DCA 1986).
Defendant’s 3.850 motion alleges that he was illegally sentenced under the 1983/1984 sentencing guidelines as to counts two and three, the two non capital sexual batteries. Specifically, defendant contends that the sentencing guidelines had not been constitutionally created at the time of his offenses and that he was not afforded the option to elect sentencing under the guidelines.
In Smith v. State, 537 So. 2d 982 (Fla. 1989), our supreme court held that the sentencing guidelines were constitutionally invalid prior to July 1, 1984. Id,., at 987-988. Smith indicates that if defendant’s contention is correct, he should be resentenced on counts two and three “as if the guidelines had never been enacted.” Smith, 537 So. 2d at 987. Accordingly, defendant is entitled to a hearing on whether he was illegally sentenced on counts two and three.
We reject the state’s contention that this ground is procedurally barred under rule 3.850 because the motion was untimely and successive. A challenge 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 him a right to “allocution” on the capital charge because the jury did not specifically find that he was 18 years of age or older at the time of the offense which is an element of capital sexual battery under section 794.-011(2) of the Florida Statutes (1983). Defendant further contends that his trial counsel was ineffective in not preserving an alleged error involving the resubmission to the jury of its verdict regarding this age issue. The trial court did not err in summarily denying defendant’s motion on these two grounds because they are procedurally barred. We agree with the state’s contention that these two other grounds of defendant’s motion are procedurally barred under rule 3.850 because the motion was untimely and a successive sixth motion.
Accordingly, we reverse the denial of defendant’s motion on the sentencing matter and remand for a hearing to determine if defendant should be resentenced on counts two and three, the non-capital sexual batteries. We affirm the denial of defendant’s motion on the other two grounds.
AFFIRMED in part; REVERSED in part; and REMANDED.
COBB and GRIFFIN, JJ., concur.
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Cited By
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Nowlin v. State, 639 So. 2d 1050 (Fla. 1st DCA 1994)…balance of a true split sentence on probation violation); Thomas v. State, 611 So. 2d [600] 601 (Fla. 2d DCA 1993) (most errors in jail credit, determinable from records readily available to the court, result in illegal sentences); Ospina v. State, 579 So. 2d 810 (Fla. 5th DCA 1991) (sentence based on guidelines that had not been constitutionally enacted); Bradley [Brady] v. State, 587 So. 2d 617 (Fla. 2d DCA 1991) (sentence imposed under statute establishing a permissive range when offense alleged in inform…
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Brown v. State, 633 So. 2d 112 (Fla. 2d DCA 1994)…aining balance of a true split sentence on probation violation); Thomas v. State, 611 So. 2d 600 (Fla. 2d DCA 1993) (most errors in jail credit, determinable from records readily available to the court, result in illegal sentences); Ospina v. State, 579 So. 2d 810 (Fla. 5th DCA 1991) (sentence based on guidelines that had not been constitutionally enacted); Brady v. State, 587 So. 2d 617 (Fla. 2d DCA 1991) (sentenced imposed under statute establishing a permissive range when offense alleged in information occ…
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Kunkel v. State, 765 So. 2d 244 (Fla. 1st DCA 2000)…guidelines unconstitutional for offenses committed before July 1, 1984. Thus, before July 1, 1984, “a court was without legal authority to sentence under the guidelines.” Fowler v. State, 641 So. 2d 941, 942 (Fla. 5th DCA 1994); see Ospina v. State, 579 So. 2d 810, 811 (Fla. 5th DCA 1991) (“A challenge 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.”). See also State v. Mancino, 714 So.…
Previewing 3 of 4 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)
- Davis v. State, 552 So. 2d 338 (Fla. 4th DCA 1989)
- Olin J. Dewberry, Jr. v. State, 570 So. 2d 1079 (Fla. 1st DCA 1990)
- McGEE v. State, 570 So. 2d 1079 (Fla. 3d DCA 1990)
- Boland v. State, 571 So. 2d 518 (Fla. 2d DCA 1990)