FLETCHER v. STATE (2001)

This is a belated appeal by Alphonso Fletcher from a final order of the trial court which summarily denied his motion to correct illegal sentence filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure.   Appellant challenged his 1997 sentences in two 1996 prosecutions for armed robbery on the grounds that the 1995 sentencing guidelines scoresheet was used, and that he was entitled to resentencing based on Heggs v. State, 759 So.2d 620 (Fla.2000).   The trial court summarily denied relief based on a State's response which had argued that appellant did not receive a guidelines sentence and that therefore his sentence totaling 40 years was not adversely affected by use of the 1995 scoresheet.   Our review of the record reveals that appellant received a guideline aggravated departure.   Thus, we cannot agree with the trial court that appellant was not adversely affected by use of the 1995 scoresheet.

Therefore, we reverse and remand the trial court order summarily denying the rule 3.800(a) motion to correct illegal sentence, for attachments of portions of the record refuting appellant's Heggs challenge, or further consideration of his sentencing challenge.   See Lemon v. State, 769 So.2d 417 (Fla. 4th DCA 2000).

I would affirm.   It seems to me that the trial court, by denying Fletcher's Heggs motion to correct his sentence, has determined that on the facts of this case, Fletcher was not adversely affected by the sentencing judge's failure to use the 1994 guidelines.   In my judgment, any error in the trial court's failure to attach portions of the record is harmless.   There is no suggestion here that the 40-year sentence would be anywhere near the 1994 guideline range.

ON MOTION FOR CERTIFICATION OF CONFLICT

We grant appellee's motion for certification of conflict.   In our original majority opinion, we reversed and remanded the trial court's summary denial of appellant Alphonso Fletcher's motion to correct illegal sentence for attachments of portions of the record refuting his challenges under Heggs v. State, 759 So.2d 620 (Fla.2000), or further consideration of his sentencing challenge, citing Lemon v. State, 769 So.2d 417 (Fla. 4th DCA 2000).   Fletcher v. State, 800 So.2d 626 (Fla. 4th DCA 2001).

Appellee requests that we certify conflict with Ray v. State, 772 So.2d 18 (Fla. 2d DCA 2000) and Kwil v. State, 768 So.2d 502 (Fla. 2d DCA 2000), and we do so in this opinion.   See also Davis v. State, 791 So.2d 1137 (Fla. 4th DCA 2001)(certifying same conflict).

PER CURIAM.

GUNTHER and FARMER, JJ., concur. STONE, J., dissents with opinion.