STATE v. WHITE (2000)

The State appeals the trial court's downward departure from a 1995 guidelines sentence, arguing that the trial judge did not give written reasons justifying the departure.   We remand this case to the trial court to reconsider its sentence in light of Heggs v. State, 759 So.2d 620 (Fla.2000).

When the trial court imposed its sentence, subsection 921.001(5), Florida Statutes (1995), required the trial court to either sentence White within the 1995 guidelines or provide a reason for a departure sentence.   If the 1995 guidelines had been constitutional, the trial court would have erred by failing to understand that it was imposing a departure sentence without written reasons.   See State v. Betancourt, 552 So.2d 1107, 1108 (Fla.1989).

Ordinarily, we would not only have reversed the sentence, but remanded this case to the trial court to give it the opportunity to consider whether departure from the 1995 guidelines is appropriate and, if so, to set forth reasons for its departure.   See id.   However, the Florida supreme court recently held that chapter 95-184, Laws of Florida, which contained the Legislature's enactment of the 1995 sentencing guidelines, violated the single subject rule contained in article III, section 6 of the Florida Constitution.   See Heggs v. State, 759 So.2d 620 (Fla.2000).

We believe that the State would not be entitled to relief if White's sentence falls within the 1994 guidelines range.   See id.   Hence, because the record does not contain a 1994 guidelines scoresheet, we remand to the trial court to consider whether the current sentence would fall within the 1994 guidelines.   See Smith v. State, 761 So.2d 419 (Fla. 2d DCA 2000).   If White's current sentence does not fall within the 1994 guidelines, then the trial court should impose a 1994 guidelines sentence, or give valid reasons to depart from the 1994 guidelines.   If on remand, the trial court should elect to impose a sentence in excess of five years, White should be given the opportunity to withdraw his plea.

Remanded.

DAVIS, Judge.

PARKER, A.C.J., and NORTHCUTT, J., Concur.