Opinion
No. 2D98-3722.
Opinion filed August 4, 2000.
Appeal from the Circuit Court for Pinellas County; Raymond O. Gross, Judge.
Daniel J. Buckingham, pro se.
Robert A. Butterworth, Attorney General, Tallahassee and Patricia A. McCarthy, Assistant Attorney General, Tampa, for Appellee.
Appellant challenges the trial court's denial of his postconviction petition following an evidentiary hearing. He contends that the trial court should have granted his petition on the grounds of ineffectiveness of trial counsel and improper calculation of his scoresheet. We find no merit in appellant's ineffectiveness of trial counsel argument, but vacate appellant's sentence and remand for recalculation of appellant's scoresheet, and for resentencing, if necessary, under Heggs v. State, 25 Fla. L. Weekly S137 (Fla. Feb. 17, 2000), revised by 25 Fla. L. Weekly S359 (Fla. May 4, 2000).
Following an evidentiary hearing, the trial court concluded that appellant was not entitled to relief for ineffectiveness of counsel, but was entitled to resentencing under a recalculated scoresheet. The State conceded that the scoresheet had been improperly calculated. Therefore, although appellant had pleaded to a bottom of the guidelines sentence, which the parties incorrectly believed to be 128.85 months, the trial court granted that portion of appellant's postconviction petition requesting a recalculation of his scoresheet and directed that appellant's scoresheet be recalculated to reflect a sentence of 117.6 months.
Appellant first contends that the trial court erred in denying his postconviction petition on the basis of ineffectiveness of trial counsel. We find no merit in this argument because the trial court's determination on this issue is supported by competent, substantial evidence. See Stephens v. State, 25 Fla. L. Weekly S65 (Fla. Feb. 4, 2000).
Appellant contends that his trial counsel was ineffective because he advised appellant that he would receive a suspended sentence and two years' community control, followed by ten years' probation. Trial counsel also allegedly advised appellant that his plea agreement to 128.85 months' imprisonment was merely a recommendation that counsel would attempt to overcome by moving for a departure sentence. At sentencing, appellant did not receive the suspended sentence he had expected to receive, but was sentenced to the 128.85 months to which he pleaded.
In denying appellant's request to withdraw his plea on this ground, the trial court attached the transcripts of the April 25, 1997, sentencing hearing and the June 8, 1998, evidentiary hearing on the postconviction petition. At the June 8, 1998 hearing, trial counsel denied telling appellant that he would receive a departure sentence. Rather, he stated that he told appellant he would argue for a departure sentence. The April 25, 1997, transcript of the sentencing hearing confirms that trial counsel did make such an argument. Moreover, at the June 8, 1998, postconviction hearing, trial counsel testified unequivocally that: (1) Appellant did not tell him he did not want to sign the plea agreement; (2) counsel did not force appellant to enter his plea; (3) counsel did not advise appellant not to worry about the sentence; and (4) counsel did not promise appellant anything other than a low guidelines sentence. Appellant's signed plea form reveals that he agreed to the preprinted statement on the form saying that he had not been offered any other promises. Moreover, the change of plea hearing reflects that appellant pleaded to a bottom of the guidelines sentence, which was 128.85 months. It also shows that when appellant was asked if any other promises had been made to him, he said, "not yet." When asked if he was satisfied with his attorney, he replied, "I believe I am, your Honor."
Pursuant to the Strickland v. Washington, 466 U.S. 668 (1984) two-prong test for ineffectiveness, counsel's performance must first be defective and, second, it must have prejudiced the defendant. Both prongs are mixed questions of law and fact. See Stephens, 25 Fla. L. Weekly at S67.
The above record facts provide competent, substantial evidence to support the trial court's determination that trial counsel's representation of appellant was not defective. Accordingly, we need not reach Strickland's prejudice prong. There is no merit to this argument.
However, turning to appellant's second issue, we conclude that, in view of the Florida supreme court's recent decision in Heggs, 25 Fla. L. Weekly S137, the trial court did impose an improper guidelines sentence. In Heggs, the supreme court declared the 1995 guidelines an unconstitutional violation of the single subject rule. Consequently, those defendants sentenced under the 1995 sentencing guidelines whose offenses occurred between the October 1, 1995 through May 24, 1997, window period must be resentenced under the 1994 sentencing guidelines, unless the 1995 sentence falls within the 1994 guidelines.
Appellant, whose offense date fell within the window period, entered a negotiated plea to a minimum 1995 guidelines term of imprisonment, which the parties incorrectly believed at the time to be 128.5 months. Appellant states that, under the 1994 guidelines, a minimum guidelines sentence would be 98.4 months, a reduction of 19.2 months from the 117.6-month term imposed as a minimum 1995 guidelines sentence. The State concedes that appellant's 1994 guidelines calculations are correct. Given the fact that appellant's minimum incarcerative term would be reduced by 19.2 months under the 1994 guidelines, we vacate appellant's sentence of 117.6 months and remand with directions that appellant be resentenced to the bottom of the appropriate 1994 guidelines sentencing range on remand.
Sentence vacated; remanded with directions.
SALCINES, J., Concurs.
PARKER, J., Concurs in part and dissents in part.
I agree that Buckingham is entitled to a new sentencing hearing, but I disagree that the trial court must sentence Buckingham to the bottom of the appropriate 1994 sentencing guidelines. In April 1997 Buckingham entered into a plea bargain with the State wherein he pleaded guilty to certain felonies and the State agreed to dismiss other charges. Because of his cooperation, the State agreed to a sentence at the bottom of the 1995 sentencing guidelines. The trial court imposed a sentence of 128.85 months, which it believed to be the bottom of the guidelines. No appeal was taken from that sentence.
In October 1997 Buckingham filed a motion for postconviction relief. At that time, the State conceded that the original sentencing score sheet contained an error, and a correction to that score sheet reflected that the bottom of the sentencing guidelines was 117.6 months. As a result, the trial court partially granted Buckingham's motion and reduced his sentence to 117.6 months.
We now recognize that the supreme court, in Heggs v. State, 25 Fla. L. Weekly S137 (Fla. Feb. 17, 2000), revised by 25 Fla. L. Weekly S359 (Fla. May 4, 2000), has concluded that a crime committed on the date of Buckingham's offense entitles Buckingham to resentencing if his sentence would have been outside of the 1994 sentencing guidelines. Because the parties and the original trial judge could not have contemplated a new sentence imposed under the 1994 sentencing guidelines at the time of the guilty plea, I would only limit the trial court's discretion to the imposition of a sentence that does not exceed 117.6 months.