Smith v. StateSmith v. State
Robert Smith appeals his judgment and sentence for aggravatеd battery on a pregnant victim.1 Mr. Smith‘s sole contention on appeal is that the 1995 sentencing guidelines are unconstitutional because the legislature‘s enactment of chapter 95-184, Laws of Florida, violаted the single-subject provision of Article III, Section 6, of the Florida Constitution. We agree and remand for reconsideration of sentence. See Heggs v. State, 759 So.2d 620 (Fla. 2000).
By this opinion, we hold that defendants are normally entitled to сhallenge their sentences under Heggs if their offense dates2 fall between October 1, 1995, and May 24, 1997. In order to be entitled to relief, a defendant‘s sentence under the 1995 guidelines will need to be a departure sentence under the 1994 guidelines. For direct appeals now pending in this court that raise the Heggs issue, we do not anticipate that we will be able to calculate scoresheets under the 1994 guidelines in most cases because that function can involve issues of fact. Thus, rather than reversing sentences affected by Heggs, we intend to remand these cases to the trial courts to calculate new scoresheets. Cf. Brim v. State, 695 So.2d 268, 275 (Fla. 1997) (remanding for Frye hearing without reversing conviction). If the trial court determines that it must vacate an existing sentence, it should conduct a new sentencing hearing and impose a new sentence. Trial courts are cautioned that the defendant‘s right tо counsel during the proceedings
I. THE WINDOW PERIOD: USUALLY OCTOBER 1, 1995, TO MAY 24, 1997
Mr. Smith‘s offense occurred on November 27, 1996. At the sentencing hearing on August 19, 1998, the trial court declined tо treat Mr. Smith as a habitual offender but imposed the maximum sentence permitted under the 1995 guidelines, 104.4 months’ imprisonment. Thereafter, in Heggs, the supreme court held that the 1995 sentencing guidelines were unconstitutionally enaсted. See Heggs, 759 So.2d at 622. It also held that the date of the offense, not the date of the sentencing hearing, determines whether a defendant has standing to challenge the constitutionality of the 1995 guidelines. Id. at 622. In its revised opinion, the supreme court clarified that only those persons serving sentences imposed pursuant to the 1995 guidelines whose sentences would have constituted a departure sentence under the 1994 guidelines stand to bеnefit from the court‘s holding. See Heggs, 759 So.2d at 627-28.
Although it is now clear that the offense date is the target date for determining cases in which a defendant may argue that he or she is entitled to resentencing under Heggs, the precise rangе of offense dates allowing for this challenge is still subject to some uncertainty. For most cases, the earliest offense date should be October 1, 1995. However, we caution lawyers and trial judges that certain sections of chapter 95-184 became effective on earlier dates.4
There would appear to be no debate that the window for challenge extends at least to October 1, 1996.5 See Diaz v. State, 752 So.2d 105 (Fla. 3d DCA 2000) (discussing the twо closing dates and the analysis behind each). This court in Heggs v. State, 718 So.2d 263, 264 n. 1 (Fla. 2d DCA 1998), suggested that the window of unconstitutionality closed with the passage of chapter 97-97, Laws of Florida, on May 24, 1997. Chapter 97-97 reenacted the provisions сontained in chapter 95-184 as part of the legislature‘s biennial adoption of the Florida Statutes.
The supreme court in Heggs declined to address the date on which the window for challenging the constitutionality of chapter 95-184 clоsed. See Heggs, 759 So.2d at 622. Based upon the date his offense occurred, Mr. Smith has standing to challenge his sentence only if May 24, 1997, constitutes the proper date on which the window closed. We now expressly adopt May 24, 1997, as thе appropriate date.
The supreme court‘s recent decision in Salters v. State, 758 So.2d 667 (Fla.2000), supports this decision. In Salters, the supreme court held that the window for challenging the violent career criminal sentencing provisions created by chapter 95-182, Laws of Florida, opened on Oсtober 1, 1995, when chapter 95-182 became effective, and closed on May 24, 1997, when
The supreme court in Salters rejected the State‘s argument that the legislature‘s enactment of chapter 96-388, Laws of Florida, which amended several statutory provisions previously addressed in chapter 95-182, сured the single-subject problems implicated in chapter 95-182. See Salters, 758 So.2d at 671. The supreme court instead concluded that the legislature‘s passage of chapter 96-388 failed to separate the dissimilar provisions contained in chapter 95-182 by reenacting them into law separately. Id. The supreme court accordingly held that the single-subject problems within chapter 95-182 were not cured until chapter 97-97 reenactеd the amendments contained in chapter 95-182 as part of the biennial adoption process. Id.
The supreme court‘s analysis in Salters substantiates this court‘s conclusion in Heggs that the closing date for challenging the constitutionality of chapter 95-184 is May 24, 1997. Chapter 96-388 also made сertain amendments to the sentencing guidelines provisions of chapter 95-184. Those amendments, however, did not cure the single-subject problems inherent in chapter 95-184 by separation and reenactment of the dissimilar provisions. As the First District points out in Henry v. State, ___ So.2d ___, 2000 WL 632597 (Fla. 1st DCA May 18, 2000), the amendments to the sentencing guidelines provisions were not reenactments at all. Rather, those provisions of chapter 96-388 further amended the guidelines. Hencе, as we concluded in Heggs, the single-subject problems within chapter 95-184 were not cured until the legislature‘s reenactment of the sentencing guidelines provisions in chapter 97-97. See 718 So.2d at 264 n. 1.
II. THE REMAND IN THIS CASE AND IN OTHER HEGGS CASES
The supreme court has announced that defendants such as Mr. Smith will benefit from its opinion in Heggs only if the sentence imposed under the 1995 sentencing guidelines would constitute an impermissible departure sentence under the 1994 guidelines. See Heggs, 759 So.2d at 627-28. This court has more than onе hundred cases pending that have raised the Heggs issue. In some appeals, it is rather obvious that the defendant will be entitled to a new sentence; in others it is not. Rarely do we have an actual scoreshеet prepared under the 1994 guidelines that was reviewed and approved by the trial court. Although this court could probably construct reasonable facsimiles of 1994 scoresheets in most of these aрpeals, the expertise to perform this task rests in the trial courts, and we are concerned that there will be contested issues of fact in some of these cases.
Thus, we decline to calculаte a new scoresheet based upon the 1994 guidelines to ascertain whether Mr. Smith is entitled to relief, and defer instead to the circuit court on remand to make that determination. If Mr. Smith‘s sentence of 104.4 months falls within the range permitted by the 1994 sentencing guidelines, resentencing will be unnecessary, and the circuit court should enter an order demonstrating that Mr. Smith‘s sentence does not require adjustment. The order declaring resеntencing unnecessary, similar to an order denying a postconviction motion, should attach all documents necessary to support that conclusion including the newly prepared scoresheet. If his current sentence exceeds the range permitted under the 1994 guidelines, however, Mr. Smith will be entitled to relief and must be resentenced.6
Remanded for reconsideration of sentencing in accordance with Heggs.
WHATLEY and CASANUEVA, JJ., Concur.