Scott v. State

763 So. 2d 1287, 2000 Fla. App. LEXIS 10940, 2000 WL 1205627

Opinion

PLEUS, J.

Darryl Scott appeals the denial of his 3.850 motion for post conviction relief, citing the supreme court’s opinion in Heggs v. State, 759 So.2d 620 (Fla.2000), which held that the “Crime Control Act of 1995,” chapter 95-184, Laws of Florida, violated the single subject rule and hence, was unconstitutional.

The only basis for remand is the contention that the defendant was illegally sentenced pursuant to unconstitutional legislation. The other grounds are without merit.

Even though Scott’s 1997 crimes occurred during the applicable window period and he alleges prejudice, Scott may or may not be entitled to relief under Heggs. It is a question which must be determined first by the trial court. We therefore remand this case to the trial court to determine whether the sentence imposed under the 1995 sentencing guidelines would constitute a departure sentence under the 1994 guidelines. If the trial court determines it must vacate the existing sentence, it should conduct a new sentencing hearing and impose a new sentence. Heggs.

This case and similar ones are being handled in this manner. Accordingly, we affirm in part and reverse in part the order denying relief, and remand for review of the sentence.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

THOMPSON, C.J., and SAWAYA, J., concur.