LARRY J. SHEELY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Larry Sheely appeals the denial of his motion to correct an illegal sentence, arguing that his 1984 sentence was imposed under unconstitutional sentencing guidelines that had not been validly enacted at the time of his offenses. The court reverses, holding that under Smith v. State, defendants convicted of pre-July 1, 1984 offenses must be sentenced under pre-guidelines law unless they affirmatively elect to be sentenced under the guidelines in effect at sentencing.
The court held that sentences imposed under the sentencing guidelines for offenses committed before July 1, 1984, are illegal unless the defendant affirmatively elected to be sentenced under the guidelines in effect at the time of sentencing. Because Sheely did not make such an affirmative election, his sentence was illegal and must be corrected.
[1] A sentence imposed under unconstitutional sentencing guidelines is illegal and subject to correction.
[2] Defendants whose offenses were committed before July 1, 1984, must affirmatively elect to be sentenced under the guidelines in effect at the time of sentencing.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the sentencing guidelines are unconstitutional in regard to criminal offenses committed before July 1, 1984, and, for such an offense, can only be utilized upon an affirmative election by the defendant to be sentenced under the guidelines in effect on the date of sentencing”
Establishes the controlling legal principle from Smith v. State that applies to Sheely's pre-1984 offenses
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Join FLexlaw to unlock all legal intelligenceSheely committed seven criminal offenses in April 1984 and entered guilty pleas on October 15, 1984. The trial court imposed concurrent sentences of f…
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STRINGER, Judge.
Larry Sheely appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Relying on Smith v. State, 537 So. 2d 982 (Fla.1989), Sheely contends that his sentence is illegal because the sentencing guidelines had not been constitutionally created on the date of the commission of his criminal offenses. We reverse because Smith entitles Sheely to be sentenced to a preguidelines sentence with possible parole eligibility unless he affirmatively elects to be sentenced under the guidelines in effect at the time of his election. Sheely, in his motion, also alleges a scoresheet error. This claim is made moot by the required resentencing. On October 15, 1984, Sheely entered guilty pleas on seven charges. All of the offenses were committed in April 1984. The trial court imposed concurrent forty-year prison sentences on all charges except for one, for which a concurrent fifteen-year prison sentence was imposed. Sheely did not appeal the judgment and sentences.
In Smith, the Florida Supreme Court held that the sentencing guidelines are unconstitutional in regard to criminal offenses committed before July 1, 1984, and, for such an offense, can only be utilized upon an affirmative election by the defendant to be sentenced under the guidelines in effect on the date of sentencing. Smith, 537 So. 2d at 987. Sheely’s criminal offenses were committed in April 1984. Therefore, he could not be sentenced under the sentencing guidelines unless he made an affirmative election to be sentenced under the guidelines. Sheely alleges that he did not affirmatively elect to be sentenced under the guidelines, and the record does not show otherwise.
A sentence that is entered pursuant to guidelines which have not been constitutionally enacted is an illegal sentence and is subject to correction pursuant to rule 8.800(a). Boland v. State, 571 So. 2d 518, 519 (Fla. 2d DCA 1990). Accordingly, we reverse the denial of Sheely’s motion and remand for resentencing. On remand, the trial court should impose a preguide-lines sentence with possible parole eligibility unless Sheely affirmatively elects to be sentenced under the guidelines in effect at the time of his election.
Reversed and remanded.
FULMER and COVINGTON, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Davis v. State, 963 So. 2d 350 (Fla. 4th DCA 2007)…sentence was imposed)); Wright v. State, 941 So. 2d 538 (Fla. 1st DCA 2006) (reversing and remanding in the same situation for attachment of records showing defendant agreed to be sentenced under the guidelines or for resentencing); Sheely v. State, 820 So. 2d 1080, 1081 (Fla. 2d DCA 2002) (reversing the denial of a 3.800(a) motion in the same situation and holding: “A sentence that is entered pursuant to guidelines which have not been constitutionally enacted is an illegal sentence and is subject to correctio…
Authorities Cited
- Alphonso P. Smith v. State, 537 So. 2d 982 (Fla. 1989)
- Boland v. State, 571 So. 2d 518 (Fla. 2d DCA 1990)