Opinion
Case No. 5D04-730.
Opinion filed July 23, 2004.
3.800 Appeal from the Circuit Court for Osceola County, Thomas W. Turner, Judge.
Felix Almenares, Bowling Green, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
Felix Almenares appeals the trial court's summary denial of his rule 3.800(a) motion. In his motion, Almenares challenged the three-year mandatory minimum sentence which was imposed on his conspiracy to traffic in cocaine conviction pursuant to the sentencing enhancements set forth in Chapter 99-188 of the Florida Statutes, arguing that the sentence is illegal because Chapter 99-188 has been held unconstitutional. Because, in denying Almenares' rule 3.800 motion, the trial court relied upon a decision from which this court has since receded, we reverse.
Initially, the trial court denied Almenares' rule 3.800(a) motion, properly relying on this court's decision in Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), which held that the defect in Chapter 99-188 was retroactively cured. However, this court recently receded from Hersey inJones v. State, 872 So.2d 938 (Fla. 5th DCA 2004) and held that retroactive application of the reenacted statute was prohibited. Accordingly, Almenares' sentence is illegal and he is entitled to have it corrected.
The State argues that this appeal should be held in abeyance because the issues of the constitutionality of Chapter 99-188 and whether it was retroactively cured are presently pending in the Florida Supreme Court. See Green v. State, 839 So.2d 748 (Fla. 2d DCA), rev. granted Franklin v. State, 854 So.2d 659 (Fla. 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA), rev. granted, 854 So.2d 659 (2003). We reject this argument because there is no way of knowing how long the case will be pending before the Supreme Court.
The State argues that rule 3.800 relief is not warranted because Almenares cannot demonstrate any prejudice resulting to him from the imposition of a three-year mandatory minimum sentence because he must serve 85% of his 48 month sentence (i.e., 40.8 months). See § 944.275(4)(b)3, Fla. Stat. (2001) (mandating that prisoners serve 85% of sentence imposed). We disagree. In Anglin v. State, 869 So.2d 674 (Fla. 5th DCA 2004), this court noted that, due to the length of the defendant's sentence, the mandatory minimum term of imprisonment would have no impact on the length of defendant's incarceration but that the trial court was nevertheless required to strike the mandatory minimum term from the defendant's sentencing documents.
The State further argues that Almenares is not entitled to receive post-conviction relief because his sentence was entered pursuant to a plea agreement. We again disagree. Even though Anglin and Jones both involved plea bargained sentences, this court directed that the sentences be corrected under rule 3.800(a) because a defendant cannot be bound by an agreement to accept an illegal sentence. Furthermore, although the Second District has held that in a negotiated plea situation sentencing relief must be sought in a rule 3.850 proceeding so that the State can be given the option of either agreeing to the imposition of a legal sentence or going to trial on the original charge; see Langley v. State, 848 So.2d 428 (Fla. 2d DCA 2003), here, the State did not argue that Almenares' plea constituted a quid pro quo agreement, nor that it should be given the option of going to trial.
We reverse the trial court's denial of Almenares' rule 3.800 motion and remand this matter to the trial court with directions to strike the mandatory minimum term from Almenares' sentence. We further certify conflict with State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA), rev. granted, 854 So.2d 659 (2003), which held that Chapter 99-188 does not violate the single subject rule.
REVERSED and REMANDED.
SAWAYA, C.J. and PLEUS, J., concur.