Howell v. State

793 So. 2d 26, 2001 WL 293216

Opinion

793 So.2d 26 (2001)

Robert HOWELL, Appellant,
v.
STATE of Florida, Appellee.

No. 2D00-5542.

District Court of Appeal of Florida, Second District.

March 28, 2001.

SILBERMAN, Judge.

Robert Howell challenges the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. In his motion, Howell claimed that he was sentenced pursuant to the 1995 sentencing guidelines. The 1995 guidelines have been held to be unconstitutional. Heggs v. State, 759 So.2d 620 (Fla.2000).

Howell alleged that the offenses for which he was sentenced occurred within the Heggs window and that the sentences constituted a departure under the 1994 sentencing guidelines. Howell, therefore, has presented a facially sufficient claim. See Daniels v. State, 771 So.2d 57 (Fla. 2d DCA 2000). The trial court denied the motion, finding that Howell's sentences were not a departure under the 1994 sentencing guidelines. However, the trial court did not attach copies of the 1994 or the 1995 sentencing guidelines scoresheets. Because Howell stated a cognizable claim, it was error for the trial court to deny the motion without attaching those portions of the record which conclusively refute the claim. See Baxter v. State, 769 So.2d 1097 (Fla. 2d DCA 2000).

Accordingly, we reverse the order of the trial court and remand for further proceedings. If the trial court again denies Howell's claim, it shall attach those portions of the record which conclusively refute the claim.

Reversed and remanded for further proceedings.

PARKER, A.C.J., and WHATLEY, J., concur.