Opinion
Case No. 4D00-4177
Opinion filed July 11, 2001 Clarification and Rehearing Denied August 17, 2001.
Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Edward A. Garrison, Judge; L.T. Case No. 96-1532CFA02.
Cornelio Diaz, Okeechobee, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
Cornelio Diaz timely appeals the second summary denial of his post conviction motion. The first order was reversed in Diaz v. State, 766 So.2d 246 (Fla. 4th DCA 2000). On remand, the trial court again denied the motion without holding an evidentiary hearing but adopted and attached to its order the state's response to the motion. We reverse the order only insofar as it denied Diaz' claim for resentencing under Heggs v. State, 759 So.2d 620 (Fla. 2000).
The trial court found that Diaz' offenses were committed during the window period when the 1995 sentencing guidelines were unconstitutional, and that the sentence he received for one of the counts exceeded the sentencing range under the 1994 guidelines. However, the court pointed out that it had found two reasons for an upward departure at the original sentencing hearing, and concluded that it would have imposed the same sentence under the 1994 guidelines.
The state agrees that a new sentencing hearing is required. The trial court may enter an upward departure sentence after the original guidelines sentence is vacated under Heggs. See Woodson v. State, 777 So.2d 1167 (Fla. 3d DCA 2001); Everett v. State, 770 So.2d 192, 193 (Fla. 2d DCA 2000). But see Etienne v. State, 780 So.2d 1038 (Fla. 4th DCA 2001) (trial court cannot impose departure sentence when it had rejected the reasons for an upward departure at the original sentencing hearing). However, the resentencing procedure must comply with the requirements of due process and the Sixth Amendment. Dougherty v. State, 26 Fla. L. Weekly D1249 (Fla. 4th DCA May 16, 2001) (defendant's presence is required at resentencing hearing); Ingram v. State, case no. 4D00-2444 (Fla. 4th DCA June 20, 2001) (slip op.)(indigent defendant has right to court-appointed counsel); June v. State, 26 Fla. L. Weekly D1332 (Fla. 5th DCA May 25, 2001) (defendant may challenge prior convictions);Lawrence v. State, 26 Fla. L. Weekly D1334 (Fla. 5th DCA May 25, 2001) (defendant may seek scoresheet corrections).
We reverse on this point only and remand for a new sentencing hearing. In all other respects, the order on appeal is affirmed.
POLEN, C.J., FARMER and SHAHOOD, JJ., concur.