Tovar v. State

KELLY, Judge.

Adalberto Tovar challenges the order of the trial court denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Tovar argues that his three-year minimum mandatory sentence is illegal based on Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). We affirm the order of the trial court because Tovar’s motion is facially insufficient as he does not affirmatively allege that his date of offense falls within the window created by Taylor. We note, however, that the trial court did not dismiss Tovar’s motion as facially insufficient. Instead, in its December 10, 2002, order, it dismissed Tovar’s motion without prejudice to refile when the Florida Supreme Court had reviewed the decision in Taylor. On May 29, 2002, several months before that order was written, the State filed a voluntary dismissal of said review in State v. Taylor; 821 So.2d 302 (Fla.2002) (table decision). Our affirmance is therefore without prejudice to Tovar’s filing a facially sufficient rule 3.800(a) motion.

Affirmed.

CASANUEVA and COVINGTON, JJ., Concur.