Opinion
No. 91-2598.
June 5, 1992.
Appeal from the Circuit Court, Suwannee County, Royce Agner, J.
Appellant pro se.
No appearance for appellee.
Marvin Jones has appealed an order summarily denying his motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We reverse and remand for further proceedings.
Jones was convicted of manslaughter, which offense was committed on June 7, 1988. His guidelines scoresheet reflected a total of 101 points, corresponding to a recommended range of "3-7 years." Jones was sentenced on January 9, 1990 to 10 years incarceration followed by 5 years probation. Jones appealed, but the appeal was closed prior to consideration on its merits based on a failure to pay the filing fee. Jones then filed the instant motion, alleging an illegal sentence in that the trial court failed to provide written reasons for departure. The court requested a response from the state, which argued that Jones could not raise the issue in a 3.850 motion when he had not raised it on direct appeal. The court agreed, and denied the motion.
Although the "permitted range" corresponding to Jones' point total is now "community control or 1-12 years incarceration," because he committed his offense prior to the July 1, 1988 effective date of the permitted guidelines ranges, they cannot be applied to him. See, e.g., Puffinberger v. State, 581 So.2d 897, 900 (Fla. 1991).
In the absence of valid reasons for departure, a defendant's confinement in excess of the recommended guidelines sentence would be longer than lawfully permitted. A sentencing error which causes an individual to be restrained for a time longer than that allowed by law is fundamental, and can be heard in any and every legal manner possible. Braddy v. State, 520 So.2d 660, 661 (Fla. 4th DCA), rev. den. 528 So.2d 1183 (Fla. 1988). Accord Lindsay v. State, 569 So.2d 892 (Fla. 4th DCA 1990). Therefore, the trial court erred in finding that Jones was barred from raising the absence of departure reasons by his failure to raise the issue on direct appeal, and we reverse and remand for further consideration of the motion.
JOANOS, C.J., and ERVIN and ZEHMER, JJ., concur.