Opinion
Case No. 4D03-3676.
Opinion filed January 14, 2004.
Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Hubert R. Lindsey, Judge; L.T. Case Nos. 84-3459 CFA02, 84-4001 CFA02 84-4003 CFA02.
Duane Eugene Owen, Raiford, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Celia A. Terenzio, Assistant Attorney General, West Palm Beach, for appellee.
Duane Euguene Owen seeks review of an order that denied his Florida Rule of Criminal Procedure 3.800 motion. Owen argued that his 1986 sentences are illegal in light of the Florida Supreme Court's decision inSmith 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 error, and reverse and remand for the trial court to consider the claim on the merits.
Leonard v. State, 760 So.2d 114, 116 n. 4 (Fla. 2000).
STEVENSON, HAZOURI and MAY, JJ., concur.