Opinion
No. 90-00254.
March 7, 1990. Rehearing Denied April 10, 1990.
Appeal from the Circuit Court, Manatee County, Thomas M. Gallen, J.
Defendant Peter G. Wahl was convicted of escape (circuit court case no. 83-106F). The offense occurred on or about December 28, 1982. On August 7, 1984, Wahl affirmatively elected to be sentenced under the guidelines. The trial court sentenced him to a departure sentence of ten years, less than the statutory maximum of fifteen years permitted for a second degree felony. His conviction was affirmed on appeal. Wahl v. State, 472 So.2d 1194 (1985).
Wahl filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The trial court denied his motion, and he timely appeals contending that we should vacate his sentence and direct that he be resentenced since the October 15, 1983 guidelines were found to be unconstitutional. Smith v. State, 537 So.2d 982 (Fla. 1989).
We reject Wahl's contention. He elected guidelines sentencing, and was so sentenced, after the sentencing guidelines had been validly enacted by the legislature. The ruling in Smith does not affect Wahl because Wahl's election took place after July 1, 1984. See Connell v. State, 538 So.2d 854, at 855 n.[*] (Fla. 1989).
Our decision is distinguishable from Wahl v. State, 543 So.2d 299 (Fla. 2d DCA 1989), wherein we granted relief to Wahl. In that case, appellant had not made an affirmative election to be sentenced under the guidelines.
Affirmed.
SCHOONOVER and THREADGILL, JJ., concur.