LEMON III v. STATE (2002)

Appellant, Ben Lemon, III (“defendant”), appeals from an order denying his motion for post conviction relief.   We affirm counts one and three and reverse and remand counts two and four.

The defendant filed a Rule 3.850 motion for post conviction relief, claiming fundamental error and ineffective assistance of counsel in counts one and three, and sentencing errors in counts two and four.   This Court affirms the order of the trial court as to counts one and three.

However, we reverse the trial court's decision on counts two and four, and exercise our discretion to treat the defendant's claim as a Rule 3.800 motion for sentence modification under Heggs v. State, 759 So.2d 620 (Fla.2000).   In Heggs, the Florida Supreme Court ruled that the 1995 sentencing guidelines were invalid due to a single subject violation in the legislation.   The Court later clarified Heggs and established the window period for resentencing to encompass crimes committed from October 1, 1995, through May 24, 1997.  Trapp v. State, 760 So.2d 924 (Fla.2000).

The crimes charged against the defendant occurred between December 26, 1996, and January 8, 1997, within the amended time period, thus affording the defendant standing to challenge his sentence under counts two and four of this motion.   We reverse and remand to the trial court for resentencing solely on these two counts in accordance with the valid laws in existence on the date of the crimes.

Affirmed in part;  reversed and remanded in part.

PER CURIAM.