ARTHUR PARKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Parker appeals the summary denial of his Rule 3.850 motion challenging his sentences for child abuse as unconstitutional under the Crime Control Act of 1995. The Florida Supreme Court had ruled the Act unconstitutional in Heggs v. State, and Parker seeks collateral relief based on that ruling. The court reverses and remands for the trial court to determine whether the plea agreement contemplated guidelines sentencing and, if so, to offer the state the choice of retrial or resentencing.
Parker has stated a legally sufficient claim for collateral relief under Heggs because he falls within the window period, alleged his crimes occurred after October 1, 1995, and sufficiently alleged his sentence could not have been imposed under 1994 guidelines without a departure. However, because the sentence was part of a plea bargain, automatic resentencing is not the remedy.
[1] A defendant seeking collateral relief based on an unconstitutional statute may do so if the crime falls within the window period and the statute's application resulted in…
[2] A sentence imposed as part of a plea bargain, where additional charges were dropped, does not automatically entitle a defendant to resentencing upon a finding that the se…
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Join FLexlaw to unlock all legal intelligence“A defendant seeking collateral relief may do so under Heggs if he or she can allege that the crime for which a sentence was received falls within the window period, and that the application of the unconstitutional statute resulted in his receiving a departure sentence.”
Establishes the test for collateral relief based on the unconstitutional Crime Control Act of 1995
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Join FLexlaw to unlock all legal intelligenceParker received sentences for aggravated child abuse and child abuse pursuant to a plea bargain in which the state dropped an additional count of aggr…
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The appellee’s motion for rehearing is granted in part. The opinion issued in this case on June 16, 2000, is withdrawn, and the following opinion is substituted.
Parker appeals from the summary denial of his motion filed pursuant to Florida Rules of Criminal Procedure 3.850 and 3.800(a), which challenges his sentences for aggravated child abuse,1 and child abuse2 on the ground that they are unconstitutional. He alleges the sentences he received are longer than permitted under the guidelines were it not for the Crime Control Act of 1995, and that the statute violates the single subject rule of the Florida Constitution.3 Parker received his sentences pursuant to a plea bargain, as a result of which the state dropped an additional count of aggravated child abuse.4 We agree Parker has stated a legally sufficient claim.
The Florida Supreme Court has now ruled that the Crime Control Act of 1995 is unconstitutional. See Heggs v. State, 759 So. 2d 620 (Fla.2000). Heggs applied to a direct appeal. However, a defendant seeking collateral relief may do so under Heggs if he or she can allege that the crime for which a sentence was received falls within the window period, and that the application of the unconstitutional statute resulted in his receiving a departure sentence. See Heggs; see also State v. Johnson, 616 So. 2d 1 (Fla.1993); Freshman v. State, 730 So. 2d 351 (Fla. 4th DCA 1999).
In this case, Parker falls within the window period because he alleges his crimes were committed after October 1, 1995 and he was charged on September 27, 1996. See Salters v. State, 758 So. 2d 667 (Fla.2000). It appears also that Parker has sufficiently alleged that his sentence imposed under the 1995 guidelines could not have been imposed under the 1994 guidelines absent a departure. See Heggs; see also McCall v. State, 616 So. 2d 10 (Fla.1993); Johnson v. State, 627 So. 2d 114 (Fla. 1st DCA 1993). Specifically, he alleges that if he had been sentenced under the 1994 guidelines, he would have been sentenced to a maximum of 54 months. However, under the unconstitutional 1995 law, the range was 66.5 to 110 months and he received a sentence of 72 months.
A further complication arises in this case because the sentence received was imposed as part of a plea process, part of the quid pro quo, for which the state dropped an additional count of aggravated child abuse. Thus the remedy in this case is not an automatic resentencing.5
Accordingly we remand for further proceedings. On remand, the trial court can review the record and determine if the plea agreement contemplated that Parker would receive a guidelines sentence. If guidelines considerations were not part of the plea agreement, relief can be denied. If they were, the state shall have the option of taking Parker to trial on all of the original charges, or resentencing him under the guidelines. See Rickman v. State, 713 So. 2d 1115 (Fla. 5th DCA 1998); Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981).
REVERSED and REMANDED.
COBB and PLEUS, JJ., concur. . § 827.03(2), Fla. Stat. (1995).
. § 827.03(1), Fla. Stat. (1995).
. Art. Ill, § 6, Fla. Const. . § 827.03(2), Fla. Stat. (1995).
.See Freshman v. State, 730 So. 2d 351 (Fla. 4th DCA 1999); Gifford v. State, 744 So. 2d 1046 (Fla. 4th DCA 1999); Hawes v. State, 712 So. 2d 834 (Fla. 4th DCA 1998); Cheney v. State, 640 So. 2d 103 (Fla. 4th DCA 1994).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
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Salim Kamau Latiif v. State, 787 So. 2d 834 (Fla. 2001)…hese circumstances, the remedy is not an automatic resentencing; instead, the State has the option on remand of proceeding to trial on the original charges or electing to have the defendant resentenced under the 1994 guidelines. See Parker v. State, 767 So. 2d 532 (Fla. 5th DCA 2000); see also Capio v. State, 765 So. 2d 853 (Fla. 5th DCA 2000) (holding that in a Heggs claim, if the State made any sort of concession in return for the plea, the State would have the option of withdrawing from the plea agreement…
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State v. Swett, 772 So. 2d 48 (Fla. 5th DCA 2000)…to drop or reduce a charge, the state is entitled to insist on adherence to the terms of the plea or in the alternative be accorded the opportunity to void the plea and take the defendant to trial on the original charges. See, e.g., Parker v. State, 767 So. 2d 532 (Fla. 5th DCA 2000)(on rehearing); Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981). In Parker, for instance, this court, in reversing the defendant’s sentence on a Heggs2 issue (unconstitutionality of 1995 amendments which increased inearcerative…
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Jenkins v. State, 771 So. 2d 37 (Fla. 4th DCA 2000)…denying rule 3.850 motion and providing, because sentence was result of negotiated plea, that state has option on remand of agreeing to sentence under 1994 guidelines or withdrawing from plea bargain and taking defendant to trial); Parker v. State, 767 So. 2d 532 (Fla. 5th DCA 2000) (reversing denial of postconviction motion and instructing trial court on remand to determine from the record whether the plea agreement contemplated the defendant’s receiving a guidelines sentence, and if it did to allow state o…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- State v. Johnson, 616 So. 2d 1 (Fla. 1993)
- Salters v. State, 758 So. 2d 667 (Fla. 2000)
- Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981)
- Cheney v. State, 640 So. 2d 103 (Fla. 4th DCA 1994)
- Freshman v. State, 730 So. 2d 351 (Fla. 4th DCA 1999)
- Hawes v. State, 712 So. 2d 834 (Fla. 4th DCA 1998)
- Rickman v. State, 713 So. 2d 1115 (Fla. 5th DCA 1998)
- Gifford v. State, 744 So. 2d 1046 (Fla. 4th DCA 1999)
- Johnson v. State, 627 So. 2d 114 (Fla. 1st DCA 1993)