Opinion
Case No. 2D03-4180.
April 30, 2004.
Appeal pursuant to Fla.R.App.P. 9.141(b)(2) from the Circuit Court for Polk County; William Bruce Smith, Judge.
Dathan Gray appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Gray alleged that the trial court erred in allowing a different trial judge to handle his resentencing, pursuant to Heggs v. State, 759 So.2d 620 (Fla. 2000), without a showing of necessity. This court has held that, without a showing of necessity, it is error to permit resentencing by a different judge than the one who originally imposed sentence. Persaud v. State, 821 So.2d 411 (Fla. 2d DCA 2002); Campbell v. State, 622 So.2d 603 (Fla. 2d DCA 1993).
Because the trial court was correct in its order that this issue should have been raised on direct appeal, we affirm without prejudice to Gray filing a petition pursuant to Florida Rule of Appellate Procedure 9.141(c), alleging ineffective assistance of appellate counsel.
Affirmed without prejudice.
ALTENBERND, C.J., and FULMER, J., concur.