GARY JEROME NEALY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gary Jerome Nealy appealed the summary denial of his motion to correct an allegedly illegal 79.6-month prison sentence. The court determined that Nealy's offense fell within a window period where the 1995 sentencing guidelines amendments were unconstitutional, requiring resentencing under the valid 1994 guidelines.
The court reversed the denial of Nealy's motion to correct illegal sentence because his offense (committed April 6, 1997) fell within the window period (October 1, 1995 to May 24, 1997) during which the 1995 amendments were unconstitutional. On remand, the trial court must either resentence him under the 1994 guidelines or determine that no resentencing is required and document its reasoning.
[1] A defendant has standing to challenge their sentence under Heggs v. …
[2] A trial court must resentence a defendant if their sentences could not have been imposed under the 1994 version of the sentencing guidelines without a departure.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Appellant's offense was committed within the window period during which the 1995 amendments to the sentencing guidelines were unconstitutional”
Establishes that Nealy's offense fell within the constitutional infirmity period and entitles him to relief
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Join FLexlaw to unlock all legal intelligenceNealy was sentenced to 79.6 months in prison using the 1995 sentencing guidelines for an offense committed on April 6, 1997. He filed a motion to corr…
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PER CURIAM.
Gary Jerome Nealy (Appellant) appeals the summary denial of his motion to correct illegal sentence, filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure, in which he challenged his prison sentence of 79.6 months, claiming that the trial court erred in using the 1995 sentencing guidelines in sentencing him for an offense committed on April 6, 1997, pursuant to Heggs v. State, 759 So. 2d 620 (Fla.2000). He alleged that a corrected score-sheet prepared under the 1994 guidelines would produce a sentencing range of 39.75 to 66.25 months. The state concedes that .Appellant’s offense was committed within the window period during which the 1995 amendments to the sentencing guidelines were unconstitutional. See Trapp v. State, 760 So. 2d 924 (Fla.2000) (holding that those persons with standing to challenge their sentences under Heggs were those whose offenses were committed on or after October 1, 1995, and before May 24, 1997).
Accordingly, we reverse the order denying appellant’s motion to correct illegal sentence. On remand, the trial court shall determine whether resentencing is required. If the trial court determines that Appellant’s sentence could not have been imposed under the 1994 version of the sentencing guidelines without a departure, it shall resentence him in accordance with the valid guidelines in existence at the time his offense was committed. If it determines there is no need to resentence him, the trial court shall attach to its order of denial all documents supporting such determination. See Heggs; Speed v. State, 764 So. 2d 873 (Fla. 4th DCA 2000); Smith v. State, 761 So. 2d 419 (Fla. 2d DCA 2000); George v. State, 760 So. 2d 293 (Fla. 2d DCA 2000).
Reversed and remanded for further proceedings consistent with this opinion.
DELL, KLEIN and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Xzavier Trapp v. State, 760 So. 2d 924 (Fla. 2000)
- Smith v. State, 761 So. 2d 419 (Fla. 2d DCA 2000)
- Speed v. State, 764 So. 2d 873 (Fla. 4th DCA 2000)
- Johnson v. State, 760 So. 2d 293 (Fla. 2d DCA 2000)