765 So. 2d 308 | Fla. Dist. Ct. App. | 2000
Terrance SMITH, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, Fifth District.
Terrance Smith, Bowling Green, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
THOMPSON, C.J.
Terrance Smith appeals the summary denial of his motion filed pursuant to Florida Rules of Criminal Procedure 3.800(a). Smith alleged that he was sentenced on 3 July 1997 under the 1995 guidelines which have been held to be unconstitutional. See Heggs v. State, 759 So.2d 620 (Fla.2000).
The state argues that Smith did not allege in his motion, as required by Heggs, the date of his offense or that the sentence imposed under the 1995 guidelines could not have been imposed under the 1994 guidelines. We affirm the trial court's order because Smith's motion is facially insufficient, but without prejudice to Smith's filing a sufficient motion. See e.g., Kahm v. State, 763 So.2d 518 (Fla. 5th DCA 2000) (denial of Rule 3.800(a) motion under Heggs affirmed without prejudice where defendant failed to allege date of offense or that sentence could not have been imposed under 1994 guidelines); Rivero v. State, 758 So.2d 723 (Fla. 4th DCA 2000) (order denying motion seeking resentencing under Heggs affirmed where motion failed to allege date of offense, but without prejudice to file new motion alleging date of offense and showing standing to challenge sentence under Heggs).
AFFIRMED Without Prejudice.
W. SHARP, and PLEUS, JJ., concur.
