Fuller v. State

769 So. 2d 528, 2000 Fla. App. LEXIS 13843, 2000 WL 1595726

Opinion

PER CURIAM.

Michael Anthony Fuller appeals the summary denial of his motion to correct an illegal sentence pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure. The trial court did not have the benefit of Trapp v. State, 760 So.2d 924 (Fla.2000), when it disagreed with Fuller’s contention that his sentence of 68 months incarceration was a departure sentence under the 1994 guidelines. Fuller was sentenced under the 1995 guidelines for a crime committed on May 20, 1997. The 1995 guidelines were declared unconstitutional in Heggs v. State, 759 So.2d 620 (Fla.2000).

Under the 1994 guidelines, Fuller’s presumptive sentence would have been 43.2 months with a maximum sentence of 54-months incarceration. Accordingly, he was adversely affected by the use of the 1995 guidelines when calculating his sentence and his crime fell within the window period of October 1,1995 and May 24,1997 for challenging the sentence as established by the supreme court in Trapp.

We vacate the order denying relief and remand to the trial court for reconsideration in light of the decision in Trapp.

ORDER VACATED; REMANDED.

W. SHARP, HARRIS and PETERSON, JJ., concur.