Gomez-Vicente v. State

774 So. 2d 957, 2001 Fla. App. LEXIS 277, 2001 WL 37815

Opinion

ON MOTION FOR REHEARING— GRANTED

PER CURIAM.

We grant the motion for rehearing, withdraw this court’s opinion filed August 30, 2000, and issue the following opinion in its place.

Roberto Gomez-Vicente (defendant) appeals from convictions and sentences for robbery with a firearm and burglary of an occupied conveyance with an assault or battery therein with a firearm. We find merit in only one issue raised in this appeal and accordingly affirm the defendant’s convictions. The state correctly concedes that defendant committed his offenses on February 14, 1997, and that he may be entitled to be resentenced under the 1994 guidelines. See Trapp v. State, 760 So.2d 924 (Fla.2000); Heggs v. State, 759 So.2d 620 (Fla.2000).

Accordingly, we remand this matter to the trial court to determine whether the defendant was adversely affected by the 1995 sentencing guidelines, and if so, to resentence him pursuant to the 1994 guidelines. See Diaz v. State, 752 So.2d 105 (Fla. 3d DCA 2000), review denied, No. SC00-652, 776 So.2d 276 (Fla. Nov.3, 2000). On remand, the defendant’s guidelines scoresheet must also be corrected to delete the improper assessment of eighteen points for possession of a firearm. See Thomas v. State, 685 So.2d 867 (Fla. 2d DCA 1996); § 921.004, Fla. Stat. (1997); Fla.R.Crim.P. 3.702(d)(12).

Affirmed in part; reversed in part and remanded with directions.