Vonador v. State

915 So. 2d 1231, 2005 WL 3439944

Opinion

915 So.2d 1231 (2005)

Mark A. VONADOR, Appellant,
v.
STATE of Florida, Appellee.

No. 2D05-79.

District Court of Appeal of Florida, Second District.

December 16, 2005. Rehearing Denied December 16, 2005.

STRINGER, Judge.

Mark A. Vonador appeals the dismissal of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Although we do not agree with the trial court's reasoning for dismissal, we nevertheless affirm because Vonador's claim is not cognizable under rule 3.800(a).

In 1992, Vonador was convicted of robbery with a firearm and sentenced to thirty years in prison, with three years' minimum mandatory pursuant to section 775.087, Florida Statutes (1991). Vonador claims his three-year minimum mandatory sentence is illegal because it was not proven that he actually possessed the firearm during the commission of the crime. Vonador's claim is an attack on the factual basis for his minimum mandatory sentence and must be raised under rule 3.850 rather than rule 3.800(a). See State v. Mancino, 705 So.2d 1379 (Fla.1998). And, the two-year time period within which Vonador could file a rule 3.850 motion has long since past. Therefore, we affirm the trial court's dismissal of Vonador's motion.

Affirmed.

FULMER, C.J. and KELLY, J., Concur.