Opinion
Case No. 2D00-550
Opinion filed July 26, 2000.
Appeal pursuant to Fla.R.App.P. 9.140(i) from the Circuit Court for Sarasota County; Stephen L. Dakan, Judge.
Xavier Renard Benton appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Benton alleges that he was sentenced under the 1995 sentencing guidelines for an offense that occurred during the period in which the guidelines were unconstitutional. See Heggs v. State, 25 Fla. L. Weekly S137 (Fla. Feb. 17, 2000), revised by 25 Fla. L. Weekly S359 (Fla. May 4, 2000).
The trial court denied the motion relying on Valdes v. State, 728 So.2d 1225 (Fla. 3d DCA 1999), which has since been quashed by the supreme court. See Valdes v. State, 25 Fla. L. Weekly S429 (Fla. May 25, 2000). We therefore reverse and remand for further consideration of his motion. See Smith v. State, 25 Fla. L. Weekly D1273 (Fla. 2d DCA May 24, 2000).
On remand, the trial court shall determine whether Benton in fact committed his offense within the Heggs window and, if so, whether his sentence could not have been imposed under the 1994 guidelines without a departure. If the answers to both of these questions are affirmative, then Benton must be resentenced in accordance with the valid guidelines in existence at the time he committed his offense. If the court enters an order declaring resentencing unnecessary, it should attach all documents necessary to reach that conclusion. See Smith, 25 Fla. L. Weekly at D1273.
Reversed and remanded for further proceedings in accordance with this opinion.
THREADGILL, A.C.J., and ALTENBERND and PARKER, JJ., Concur.