Opinion
No. 94-1651.
November 16, 1994.
An Appeal under Fla.R.Crim.P. 9.140(g) from the Circuit Court for Dade County; Bernard S. Shapiro, Judge.
Isaiah Graham, in pro. per.
Robert A. Butterworth, Atty. Gen., and Paulette R. Taylor, Asst. Atty. Gen., for appellee.
Before COPE, LEVY and GODERICH, JJ.
Confession of Error
Isaiah Graham appeals an order denying his motion to correct illegal sentence. Defendant was convicted of several crimes committed on October 1, 1983. At sentencing in November, 1984 the parties believed that defendant was covered by the sentencing guidelines which originally went into effect on October 1, 1983. See Smith v. State, 537 So.2d 982, 984 (Fla. 1989). Consequently defendant was sentenced under the sentencing guidelines. The Florida Supreme Court subsequently held that the sentencing guidelines were unconstitutional for the period prior to July 1, 1984. Smith v. State, 537 So.2d at 988. The State properly concedes that defendant is entitled to a new sentencing proceeding. At that time he is to be resentenced to a non-guidelines sentence unless he makes an affirmative election to be sentenced under the sentencing guidelines. Id.; Braggs v. State, 642 So.2d 129 (Fla. 3d DCA 1994).
Reversed and remanded for resentencing.