Osborne v. State

STONE, Judge,

concurring specially.

In my judgment, the time to have resolved this was on Appellant’s direct appeal four years ago, and not by collateral attack under rule 3.800(a). Could I do so, I would affirm. However, as this court has previously determined that this type of error can be addressed by post-conviction relief, I must concur. Lindsay v. State, 569 So.2d 892 (Fla. 4th DCA 1990); Braddy v. State, 520 So.2d 660 (Fla. 4th DCA), rev. denied, 528 So.2d 1183 (Fla.1988).

I note that the state does not dispute that the sentence imposed is a departure from the guidelines.