Vidiek Rodriguez v. State

152 So. 3d 1290, 2015 Fla. App. LEXIS 176, 2015 WL 71684

Opinion

PER CURIAM.

Vidiek Rodriguez petitions this court alleging that he received ineffective assistance from his appellate counsel. Rodriguez argues that counsel should have filed a rule 3.800(b)(2) motion to correct a sentencing error and argued on appeal that the trial court erred in sentencing a first time felony offender to prison without ordering a presentence investigation report as required by rule 3.710(a). The state agrees that Rodriguez may be entitled to resentencing pursuant to Hernandez v. State, 137 So.3d 542 (Fla. 4th DCA 2014).

Accordingly, we grant petitioner a new appeal to allow appellate counsel to file a rule 3.800(b)(2) motion. This opinion shall be filed with the lower tribunal and treated as a notice of appeal. If petitioner qualifies for appointed counsel, the lower court shall appoint counsel to represent him on the appeal, which will proceed under a new case number.

STEVENSON, FORST and KLINGENSMITH, JJ., concur.