Opinion
No. 2D00-4391.
Opinion filed March 7, 2001.
Appeal pursuant to Fla.R.App.P.9.141(b)(2) from the Circuit Court for Charlotte County; Donald E. Pellecchia, Judge.
Affirmed.
Donald Arthur Futch challenges the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Procedure 3.800(a) in which he alleged that he was sentenced under an unconstitutional version of the 1995 guidelines. As the trial court acknowledged in its order, Futch's offenses fell within the Heggs window; however, the sentences imposed were not a departure under the 1994 guidelines, and Futch is not entitled to relief. See Gonzales v. State, 25 Fla. L. Weekly D2851 (Fla. 2d DCA Dec. 13, 2000). Futch's sworn motion also contained a claim that his plea was involuntary based on the discrepancy in the sentencing range between the 1994 sentencing guidelines and the unconstitutional version of the 1995 guidelines. The trial court denied this claim stating that because Futch's sentence was not illegal, he was not entitled to withdraw his plea.
Futch's maximum sentence under the 1995 guidelines was almost double what it was under the 1994 guidelines.
Futch entered into a negotiated plea in which he received a below guidelines sentence under the unconstitutional version of the 1995 guidelines. In Murphy v. State, 773 So.2d 1174 (Fla. 2d DCA 2000) (en banc), we held that a defendant who entered into a negotiated plea to the bottom of the unconstitutional version of the 1995 guidelines, but whose sentence was not a departure under the 1994 guidelines, may file a rule 3.850 motion challenging the voluntary and intelligent nature of his plea. In the present case, neither Futch nor the trial court had the benefit of Murphy. Accordingly, we affirm the order of the trial court without prejudice to any right Futch might have to file a timely and legally sufficient rule 3.850 motion challenging the intelligent and voluntary nature of his plea. Any forthcoming rule 3.850 motion filed pursuant to Murphy shall not be considered successive, and Futch may include the claim that he raises in his present motion concerning the voluntariness of his plea.
Parker, A.C.J., and Northcutt and Salcines, JJ., Concur.