Gray v. State

879 So. 2d 21, 2004 Fla. App. LEXIS 6040, 2004 WL 912803

Opinion

STRINGER, Judge.

Dathan Gray appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Gray alleged that the trial court erred in allowing a different trial judge to handle his resen-tencing, pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000), without a showing.of necessity. This court has held that, without a showing of necessity, it is error to permit resentencing by a. different judge than the one who originally imposed sentence. Persaud v. State, 821 So.2d 411 (Fla. 2d DCA 2002); Campbell v. State, 622 So.2d 603 (Fla. 2d DCA 1993).

Because the trial court was correct in its order that this issue should have been raised on direct appeal, we affirm without prejudice to Gray filing a petition pursuant to Florida Rule of Appellate Procedure 9.141(c), alleging ineffective assistance of appellate counsel.

Affirmed without prejudice.

ALTENBERND, C.J., and FULMER, J., concur.