Smith v. State, 844 So. 2d 755

PER CURIAM.

The appellant challenges the order by which the trial court denied his Florida Rule of Criminal Procedure 3.800(a) motion. We conclude that only one of the appellant‘s claims has merit. Because the record confirms the appellant‘s claim that the trial court did not orally pronounce a habitual offender sentence when resentencing the appellant pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000), his written habitual offender sentence violates double jeopardy and is illegal. See Evans v. State, 675 So.2d 1012 (Fla. 4th DCA 1996), approved by Ashley v. State, 28 Fla. L. Weekly S18, ___ So.2d ____, 2003 WL 60564 (Fla. Jan. 9, 2003); see also Trotter v. State, 825 So.2d 362 (Fla.2002) (holding that resentencing pursuant to Heggs is a de novo proceeding which must comport with all constitutional requirements); see also Hopping v. State, 708 So.2d 263 (Fla.1998)(holding that a double jeopardy claim may be raised in a rule 3.800(a) motion when the double jeopardy violation can be determined from the face of the record).

We therefore reverse the order to the extent that it reflects the trial court‘s denial of the double jeopardy claim, but we otherwise affirm the order under review. This case is remanded to the trial court for entry of a new written sentencing order which is consistent with the oral pronouncement at resentencing.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

ALLEN, C.J., BOOTH and BARFIELD, JJ., concur.

Case Details

Case Name: Smith v. State

Court Name: District Court of Appeal of Florida

Date Published: May 9, 2003

Citations: 844 So. 2d 755; 2003 WL 21034372; 1D02-4098

Docket Number: 1D02-4098

Court Abbreviation: Fla. Dist. Ct. App.