Opinion
Case No. 4D00-4317.
Opinion filed October 17, 2001.
Appeal of order denying rule 3.850(a) motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Howard C. Berman, Judge; L.T. Case No. 97-3878 CF AO2.
Tifphan Mario Adderly, Okeechobee, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Monique E. L'Italien, Assistant Attorney General, West Palm Beach, for appellee.
We grant the State's motion for rehearing, withdraw our previous opinion dated October 17, 2001, and substitute the following opinion.
Tifphan Adderly appeals from the order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.850 in which he claims an entitlement to resentencing under Heggs v. State, 759 So.2d 620 (Fla. 2000) We affirm.
Appellant claims that this sentence is illegal because the 1995 sentencing guidelines were declared unconstitutional in Heggs. The date of his offense falls within the window period set forth in Trapp v. State, 760 So.2d 924 (Fla. 2000). The guidelines scoresheet range under the 1995 guidelines was 313.5 months to 522.5 months. Under the re-scored 1994 guidelines the range was 176.4 months to 294 months.
Appellant was charged with first degree murder but entered into a negotiated plea agreement to plead guilty to second degree murder, a lesser offense, with a sentence of sixty years in prison. After thorough questioning by the trial court on the voluntariness of his plea, the trial court accepted appellant's plea in accordance with the terms of the plea agreement.
"When a negotiated plea agreement is not conditioned upon the imposition of a sentence within a specific guideline range, improper scoring of the defendant's scoresheet will not render the plea illegal unless the sentence exceeds the statutory maximum." Dunenas v. Moore, 762 So.2d 1007, 1008 (Fla. 3d DCA 2000). The record on appeal indicates appellant entered into a negotiated settlement agreement that was not conditioned upon the guidelines but upon a reduction of the charge against him. His sentence of sixty years was also within the statutory maximum for second degree murder, a life felony.
We conclude that appellant's sentence was not illegal and, therefore, affirm the order denying appellant's motion.
Appellant challenges the trial court's summary denial of his rule 3.850 motion to correct illegal sentence under Heggs v. State, 759 So.2d 620 (Fla. 2000). Appellant challenges his sentence pursuant to a negotiated settlement agreement on the charge of second degree murder with a deadly weapon. Whether, as the state contends, appellant is precluded from relief under Heggs because the sentence appellant received was pursuant to a negotiated settlement agreement and also based upon written aggravating circumstances is an issue for the trial court to determine.
Accordingly, the order denying appellant's motion is reversed and remanded for an evidentiary hearing. If, on remand, the trial court determines that appellant is entitled to relief under Heggs, then the state has the option of agreeing to a guidelines sentence under the 1994 guidelines or withdrawing from the plea bargain and taking appellant to trial. Warren v. State, 785 So.2d 1268 (Fla. 4th DCA 2001).
FARMER, KLEIN and HAZOURI, JJ., concur.