Opinion
No. 5D02-435.
May 31, 2002.
3.800 Appeal from the Circuit Court for Putnam County, A.W. Nichols, III, Judge.
Johnathan Saylor, DeFuniak Springs, Pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
There appears to be more problems with this oft reviewed case, problems arising under Heggs v. State, 759 So.2d 620 (Fla. 2000). It appears that Saylor's primary offense at sentencing (attempted second degree murder) should have been scored as a level 8 offense instead of a level 9. Further, the one level increase because of the use of a firearm should not apply during the Heggs window period. See Salters v. State, 758 So.2d 667 (Fla. 2000).
We reject Saylor's Apprendi argument.
This matter is remanded to the trial court for resentencing and the new sentence may be any sentence which the court could have imposed at the original sentencing. See Trotter v. State, 801 So.2d 1041 (Fla. 5th DCA 2001), rev. granted, Table No. SC02-14 (Fla. Apr. 30, 2002).
REVERSED and REMANDED for re-sentencing.
SHARP, W., and PALMER, JJ., concur.