Owen v. State

864 So. 2d 557 (2004)

Duane Eugene OWEN, Appellant,
v.
STATE of Florida, Appellee.

No. 4D03-3676.

District Court of Appeal of Florida, Fourth District.

January 14, 2004.

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.

Prior report: 862 So. 2d 687.

PER CURIAM.

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 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 error^[1], and reverse and remand for the trial court to consider the claim on the merits.

STEVENSON, HAZOURI and MAY, JJ., concur.

NOTES

[1] Leonard v. State, 760 So. 2d 114, 116 n. 4 (Fla.2000).