King v. State

769 So. 2d 1095, 2000 Fla. App. LEXIS 12305, 2000 WL 1395363

Opinion

DAVIS, Judge.

King challenges his sentence pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000). We remand for reconsideration of his sentence.

King committed his offenses on April 27, 1997, within the Heggs October 1, 1995, through May 24, 1997, window period. See Trapp v. State, 760 So.2d 924 (Fla.2000). The trial court sentenced him pursuant to the 1995 sentencing guidelines, which the Florida Supreme Court found unconstitutional in Heggs. Despite King’s failure to raise this issue below, the error is fundamental because it may affect the amount of time that King spends incarcerated. See Maddox v. State, 760 So.2d 89 (Fla.2000). Because we cannot determine whether the 68.55-month sentence King received could have been imposed under the 1994 guidelines, we remand to the trial court for reconsideration of King’s sentence pursuant to Heggs and Smith v. State, 761 So.2d 419 (Fla. 2d DCA 2000).

THREADGILL, A.C.J., and FULMER, J., Concur.