Opinion
No. 5D99-3349.
Opinion filed June 16, 2000.
Appeal from the Circuit Court for Marion County; Carven D. Angel, Judge.
Arthur Parker, Chipley, pro se.
No Appearance for Appellee.
Parker appeals from the summary denial of his motion filed pursuant to Florida Rules of Criminal Procedure 3.850 and 3.800(a), which challenges his sentences for aggravated child abuse, and child abuse on the ground that they are unconstitutional. He alleges the sentences he received are longer than permitted under the guidelines were it not for the Crime Control Act of 1995, and that the statute violates the single subject rule of the Florida Constitution. Parker received his sentences pursuant to a plea bargain, as a result of which the state dropped an additional count of aggravated child abuse. We agree Parker is entitled to relief.
§ 827.03(2), Fla. Stat. (1995).
§ 827.03(1), Fla. Sat. (1995).
Art. III, § 6, Fla. Const.
§ 827.03(2), Fla. Stat. (1995).
The Florida Supreme Court has now ruled that the Crime Control Act of 1995 is unconstitutional. See Heggs v. State, 2000 WL 178052 (Fla. Feb. 17, 2000). Heggs applied to a direct appeal. However, a defendant seeking collateral relief may do so under Heggs if he or she can allege that the crime for which a sentence was received falls within the window period, and that the application of the unconstitutional statute made a difference in the sentence received. See State v. Johnson, 616 So.2d 1 (Fla. 1993); Freshman v. State, 730 So.2d 351 (Fla. 4th DCA 1999).
In this case, Parker falls within the window period because he alleges his crimes were committed after October 1, 1995 and he was charged on September 27, 1996. See Salters v. State, 2000 WL 581696 (Fla. May 11, 2000). It appears also that Parker has sufficiently alleged that re-sentencing under the prior law would make a difference; i.e., he was affected by the unconstitutional law. See McCall v. State, 616 So.2d 10 (Fla. 1993); Johnson v. State, 627 So.2d 1114 (Fla. 4th DCA 1993). Specifically, he alleges that if he had been sentenced under the 1994 guidelines, he would have been sentenced to a maximum of 54 months. However, under the unconstitutional 1995 law, the range was 66.5 to 110 months and he received a sentence of 72 months.
A further complication arises in this case because the sentence received was imposed as part of a plea process, part of the quid pro quo, for which the state dropped an additional count of aggravated child abuse. Thus the remedy in this case is not an automatic resentencing.
See Freshman v. State, 730 So.2d 351 (Fla. 4th DCA 1999); Gifford v. State, 744 So.2d 1046 (Fla. 4th DCA 1999); Hawes v. State, 712 So.2d 834 (Fla. 4th DCA 1998); Cheney v. State, 640 So.2d 103 (Fla. 4th DCA 1994).
Accordingly we vacate the sentences and remand for further proceedings. On remand, the state shall have the option of vacating the judgment and sentences, and taking Parker to trial on all of the original charges, or vacating the sentences imposed and resentencing under the guidelines. See Rickman v. State, 713 So.2d 1115 (Fla. 5th DCA 1998); Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981).
REVERSED and REMANDED.
DAUKSCH and COBB, JJ., concur.