MAGANA v. STATE (2003)

Jesus H. Magana challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a).   Because Magana failed to present a facially sufficient claim, we affirm the trial court's order.

In his motion, Magana alleged that the seven-year mandatory minimum term of imprisonment for trafficking in methamphetamine was illegally imposed.   Magana based his claim on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002).   Magana's motion is facially insufficient because he does not affirmatively allege that the date of his offense falls within the window created by Taylor.   See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003).   However, we note that in its order, the trial court did not dismiss Magana's motion as facially insufficient.   Instead, it dismissed the motion without prejudice to refile when the Florida Supreme Court had reviewed the decision in Taylor.   The trial court was apparently unaware that prior to the issuance of its order in the present case, the petition for review in Taylor had been voluntarily dismissed. See State v. Taylor, 821 So.2d 302 (Fla.2002) (table decision).   Therefore, our affirmance is without prejudice to any right Magana might have to file a facially sufficient rule 3.800(a) motion raising the same claim.   See Sims, 838 So.2d 658.

Affirmed.

SILBERMAN, Judge.

WHATLEY and SALCINES, JJ., Concur.