DUANE EUGENE OWEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Duane Euguene Owen seeks review of an order that denied his Florida Rule of Criminal Procedure 8.800 motion. Owen argued that his 1986 sentences are illegal in light of the Florida Supreme Court’s decision in Smith v. State, 537 So. 2d 982 (Fla.1989). Smith held the sentencing guidelines unconstitutional for offenses committed before July 1, 1984. In essence, before July 1, 1984, a trial court lacked legal authority to impose a guidelines sentence. A defendant could become eligible for parole if not sentenced pursuant to the guidelines. Id.See also Kunkel v. State, 765 So. 2d 244 (Fla. 1st DCA 2000).
Owen’s offense dates predate July 1, 1984. Owen’s motion is legally sufficient as he alleged that he was not given the opportunity to elect to be sentenced under the law prior to the establishment of sentencing guidelines, under which he would be eligible for parole. We reject the state’s claim of harmless error1, and reverse and remand for the trial court to consider the claim on the merits.
STEVENSON, HAZOURI and MAY, JJ., concur. . Leonard v. State, 760 So. 2d 114, 116 n. 4 (Fla.2000).
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)…delines. The trial court failed to address numerous cases, many of which were specifically cited by Davis in his motion, which hold that this error constitutes an illegal sentence that may be corrected in a rule 3.800(a) motion. See Owen v. State, 864 So. 2d 557 (Fla. 4th DCA 2004); Smith v. State, 946 So. 2d 1078 (Fla. 1st DCA 2006) (finding sentence illegal and, even though claim had been previously raised and rejected, application of a procedural bar [*351] would result in a manifest injustice (as defend…
Authorities Cited
- Leonard v. State, 760 So. 2d 114 (Fla. 2000)
- Alphonso P. Smith v. State, 537 So. 2d 982 (Fla. 1989)
- Brown v. Fuentes, 765 So. 2d 244 (Fla. 1st DCA 2000)
- Kunkel v. State, 765 So. 2d 244 (Fla. 1st DCA 2000)