Nelms v. State

768 So. 2d 1177, 2000 Fla. App. LEXIS 11738, 2000 WL 1299771

Opinion

PER CURIAM.

Allen Nelms appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Nelms alleges that the 1995 sentencing guidelines were unconstitutional. The trial court denied the motion as premature. We reverse and remand for further consideration of this motion. See Heggs v. State, 759 So .2d 620 (Fla.2000).

We remand for the trial court to determine whether Nelms in fact committed his offense within the Heggs window and, if so, whether his sentence could not have been imposed under the 1994 guidelines without a departure. If the answers to both of these questions are affirmative, then Nelms must be resentenced in accordance with the valid guidelines in existence at the time he committed his offenses. If the court enters an order declaring resentenc-ing unnecessary, it should attach all documents necessary to reach that conclusion. See Smith v. State, 761 So.2d 419 (Fla. 2d DCA 2000).

Reversed and remanded.

PATTERSON, A.C.J., and WHATLEY and SALCINES, JJ., Concur.