GUIDO RUBEN ZIRIO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the defendant's motion for post-conviction relief under rule 3.850 was untimely and affirmed its denial, but reversed the denial of a motion under rule 3.800 due to invalid sentencing guidelines.
The defendant appealed the denial of his motions for post-conviction relief. His 3.850 motion was filed over two years after his conviction became fin…
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PER CURIAM.
The defendant, Guido Ruben Zirio, appeals from the denial of his 3.850 and 3.800 motions below. We affirm, in part, and reverse, in part.
The trial court properly denied the defendant’s 3.850 motion where the motion was untimely filed. There was over a two-year time span between the date that the defendant’s conviction and sentence became final and the date that the defendant filed the instant motion for post-conviction relief. Also, none of the applicable exceptions to the limitations period are present. See Bannister v. State, 606 So. 2d 1247 (Fla. 5th DCA 1992). Therefore, we affirm the trial court’s denial of the defendant’s 3.850 motion.
With regard to the denial of the defendant’s 3.800 motion, the defendant contends, and the State properly concedes, that he was sentenced pursuant to the 1995 sentencing guidelines and that these guidelines were invalidated by Heggs v. State, 759 So. 2d 620 (Fla.2000). The defendant’s offense in this case occurred on December 28, 1995, which falls within the window period as .determined by the Florida Supreme Court in Trapp v. State, 760 So. 2d 924 (Fla.2000) (holding that the window period for challenging Chapter 95-184 opened on October 1, 1995, and closed on May 24, 1997). Accordingly, we remand this case for re-sentencing under the guidelines in effect prior to the enactment of Chapter 95-184.
Affirmed, in part; reversed, in part, and remanded for re-sentencing.
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Potter v. State, 769 So. 2d 519 (Fla. 3d DCA 2000)…ear time span between the date that his conviction and sentence became final and the date that he filed the instant motion for post-conviction relief. Also, none of the applicable exceptions to the limitations period are present. See Zirio v. State, 762 So. 2d 1060 (Fla. 3d DCA 2000). [*520] As to his claim under rule 3.800(a), that rule is limited to the correction of illegal sentences which do not require an evidentiary hearing and his contentions do not support such a result. See State v. Mancino, 714 So. 2…
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Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Xzavier Trapp v. State, 760 So. 2d 924 (Fla. 2000)
- Bannister v. State, 606 So. 2d 1247 (Fla. 5th DCA 1992)