Opinion
Case No. 5D00-1522
Opinion filed July 21, 2000 JULY TERM 2000
Appeal from the Circuit Court for St. Johns County, Robert K. Mathis, Judge.
Jeffrey A. Kahm, Panama City, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
Kahm appeals from the summary denial of his motion filed pursuant to Florida Rule of Appellate Procedure 3.800(a). He alleges that the 1995 sentencing guidelines used to calculate his guidelines sentence were unconstitutional and therefore he must be resentenced pursuant to the 1994 sentencing guidelines. The trial judge denied Kahm's motion, because the sentence was imposed pursuant to a plea colloquy. However, the plea colloquy also included a statement that the agreed-upon sentence was within the guidelines.
Kahm may therefore be entitled to relief. However, Kahm has failed to allege the date of the offense or offenses for which he was sentenced, and he has not alleged that the sentence imposed could not have been imposed under the 1994 guidelines. See Heggs v. State, 25 Fla. L. Weekly S137 (Fla. Feb. 17, 2000), as revised, 25 Fla. L. Weekly S359 (Fla. May 4, 2000); Parker v. State, 25 Fla. L. Weekly 1465 (Fla. 5th DCA June 16, 2000).
Accordingly, we affirm the trial court's order, but without prejudice to Kahm to refile a facially sufficient rule 3.800(a) motion, or alternatively, to file a rule 3.850 motion to withdraw his plea.
AFFIRMED.
THOMPSON, CJ., and PLEUS, J., concur.