GREGORY BANKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Banks appealed the summary denial of his Rule 3.850 post-conviction motion seeking resentencing or plea withdrawal after the 1995 sentencing guidelines were declared unconstitutional in Heggs v. State. The court affirmed the denial because Banks' sentence was imposed pursuant to a negotiated plea agreement rather than the guidelines, and the sentence could have been imposed under the 1994 guidelines.
Banks is not entitled to resentencing because his sentence was imposed pursuant to a negotiated term of years rather than the guidelines, and the sentence he received could have been imposed under the 1994 guidelines. His claim to withdraw his plea also fails for the same reason. Even if the claims had merit, the motion was untimely.
[1] A defendant sentenced pursuant to a negotiated term of years, rather than directly pursuant to sentencing guidelines, is not entitled to resentencing based on a subsequen…
[2] A defendant is not entitled to resentencing or to withdraw a plea if the sentence imposed could have been imposed under the prior, constitutional sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“he is not entitled to be resentenced because his sentence was imposed pursuant to a negotiated term of years, and not pursuant to the guidelines”
Establishes the core distinction that sentences imposed by plea agreement negotiation are treated differently from guideline-based sentences for purposes of Heggs relief.
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Join FLexlaw to unlock all legal intelligenceBanks received a prison sentence pursuant to a plea agreement. He claimed in his Rule 3.850 motion that he had been sentenced to the low end of the 19…
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[*154] PER CURIAM.
The appellant challenges the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction. relief. After receiving a prison sentence pursuant to a plea agreement, the appellant claimed in his motion that he had been sentenced to the low end of the 1995 guidelines. Because the 1995 guidelines were declared unconstitutional in Heggs v. State, 759 So. 2d 620 (Fla.2000), the appellant sought to be sentenced to the low end of the 1994 guidelines or to withdraw his plea. We affirm the trial court’s summary denial of the claim, but we again certify the questions we certified in Regan v. State, 787 So. 2d 265 (Fla. 1st DCA 2001).
Although the appellant has standing to raise this Heggs claim, see Trapp v. State, 760 So. 2d 924 (Fla.2000), he is not entitled to be resentenced because his sentence was imposed pursuant to a negotiated term of years, and not pursuant to the guidelines. See Hipps v. State, 790 So. 2d 583 (Fla. 1st DCA 2001). His claim for resentencing also fails because the sentence he received could have been imposed under the 1994 guidelines. See Heggs v. State, 759 So. 2d at 627.
Because the appellant’s sentence could have been imposed under the 1994 guidelines, his claim that he is entitled to withdraw his plea also fails. See Booker v. State, 771 So. 2d 1187 (Fla. 1st DCA 2000), rev. granted, 791 So. 2d 1095 (Fla. June 15, 2001).
Even if the appellant’s claims had merit, his motion was untimely under our decision in Regan. Because the supreme court’s review in Booker might lead to a decision recognizing the viability of a claim to withdraw a plea in the circumstances presented in Booker and in the present case, and recognizing the likelihood that the appellant will seek supreme court review challenging our decisions in Booker and Regan, we certify to the supreme court the same questions certified m 1le-gan as questions of great public importance:
WHETHER THE CHANGE OF LAW CREATED BY THE HEGGS DECISION SHOULD BE DEEMED A “NEWLY DISCOVERED FACT” AS CONTEMPLATED BY RULE 3.850(B)(1), WHEREBY AN APPELLANT MAY RAISE A HEGGS BASED CLAIM FOR POSTCONVICTION RELIEF MORE THAN TWO YEARS AFTER THE APPELLANT’S JUDGMENT AND CONVICTION BECAME FINAL?
WHETHER THE CHANGE OF LAW CREATED BY THE HEGGS DECISION SHOULD BE DEEMED TO APPLY RETROACTIVELY, SUCH THAT AN APPELLANT MAY RAISE A HEGGS BASED CLAIM FOR POSTCONVICTION RELIEF MORE THAN TWO YEARS AFTER THE APPELLANT’S JUDGMENT AND CONVICTION BECOME FINAL?
The order under review is affirmed.
ALLEN, C.J., MINER and DAVIS, JJ., CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Xzavier Trapp v. State, 760 So. 2d 924 (Fla. 2000)
- Regan v. State, 787 So. 2d 265 (Fla. 1st DCA 2001)
- Booker v. State, 771 So. 2d 1187 (Fla. 1st DCA 2000)
- Hipps v. State, 790 So. 2d 583 (Fla. 1st DCA 2001)