Opinion
Case No. 3D03-1155.
Opinion filed April 7, 2004.
An Appeal from the Circuit Court for Miami-Dade County, Roberto M. Pineiro, Judge, Lower Tribunal No. 75-6212.
Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
Before SHEVIN, RAMIREZ and WELLS, JJ.
We reverse the summary disposition of defendant's motion. We agree with defendant's contention, and the state's concession, that the court erred in denying the motion to strike the condition of hard labor imposed as part of his sentence. Hard labor is an illegal condition of this sentence. See Holman v. State, 740 So.2d 1258 (Fla. 3d DCA 1999). Accordingly, we remand with directions to strike that condition. As to defendant's constitutional attack on his sentence as violating the prohibition against cruel and/or unusual punishment, we remand to the trial court to hold an evidentiary hearing and to conduct a proportionality analysis guided by the objective criteria set forth in State v. Cotton, 769 So.2d 345 (Fla. 2000) (quoting Gibson v. State, 721 So.2d 363, 368 (Fla. 2d DCA 1998)). See Harmelin v. Michigan, 501 U.S. 957 (1991); Solem v. Helm, 463 U.S. 277 (1983); Hale v. State, 630 So.2d 521 (Fla. 1993).
Defendant shall be represented by counsel, and counsel shall have the opportunity to allege additional facts to support the cruel and/or unusual punishment claim.
Reversed and remanded, with directions.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.