Opinion
Case No. 4D04-1582.
Opinion filed July 14, 2004.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Michael G. Kaplan, Judge, L.T. Case No. 96-23174 CF10A.
Paul Cavanagh, Monticello, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
Paul Cavanagh, appeals from an order summarily denying his motion for postconviction relief. We reverse and remand for further review of Cavanagh's Heggs based point. Heggs v. State, 759 So.2d 620 (Fla. 2000).
Cavanagh pleaded guilty to four counts of aggravated assault. He was sentenced to community control followed by a probationary term. A subsequent violation led to revocation of Cavanagh's probation. Cavanagh alleges that he pleaded to the violation, and was sentenced by the trial court to a bottom of the guidelines sentence, seventy three months.
Cavanagh's claim is that the sentencing guidelines used by the trial judge have been declared unconstitutional. Heggs, 759 So.2d at 620, Trapp v. State, 760 So.2d 924 (Fla. 2000); Latalian v. State, 786 So.2d 1242 (Fla. 4th DCA 2001).
Though not entitled to resentencing automatically, Cavanagh is entitled to further review of this claim. See Latalian, 786 So.2d at 1243. Accordingly, we reverse and remand for an evidentiary hearing or further attachments refuting the claim. If the trial court determines that Cavanagh is entitled to relief, the state will have the option of either agreeing to a new sentence or withdrawing from the plea agreement and proceeding to a violation of probation hearing.
FARMER, C.J., STONE and GROSS, JJ., concur.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY FILED MOTION FOR REHEARING.