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Hindenach v. State2/13/2002
Appellant, John Hindenach, appeals from his resentencing after the trial court granted his motion to correct illegal sentence under Heggs v. State, 759 So. 2d 620 (Fla. 2000) (holding that defendant is entitled to resentencing if the sentence imposed under the unconstitutional 1995 sentencing guidelines would constitute an impermissible departure sentence under the 1994 guidelines). Appellant contends that the trial court erred in resentencing him to a guidelines sentence which exceeds the statutory maximum for his offense contrary to the decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). We affirm.
On June 13, 1996, appellant was charged by information with driving under the influence (DUI) and/or driving with a blood alcohol level of .08 or higher (UBAL) causing serious bodily injury to another under sections 316.193(1) and 316.193(3)(c)(2), Florida Statutes (1995). On January 7, 1997, he pled nolo contendere to that charge and a judgment of conviction was entered. The 1995 guidelines scoresheet prepared for his initial sentencing had 99 total sentencing points, including 56 for causing serious bodily injury, and a guidelines range of 53.2 to 88.7 months. The trial court sentenced appellant to 80 months in prison. The statutory maximum for the third degree felony he was charged with was five years (60 months). § 775.082(3), Fla. Stat. (1995).
Appellant appealed from his sentence and this court reversed the sentence finding that the trial court could not enhance a recommended sentence that already exceeds the maximum set by the penalty statute by a further extension within the guidelines range. See Hindenach v. State, 708 So. 2d 336 (Fla. 4th DCA 1998). The state filed a Notice of Discretionary Review with the supreme court which was granted and on review, the supreme court quashed this court's decision relying on its decision in Mays v. State, 717 So. 2d 515 (Fla. 1998). See State v. Hindenach, 720 So. 2d 242 (Fla. 1998). Pursuant to the supreme court's decision, this court issued a mandate affirming appellant's conviction and sentence.
On July 12, 2000, appellant filed a motion to correct illegal sentence in the trial court under Florida Rule of Criminal Procedure 3.800(a). He argued that under Heggs his sentence was unconstitutional. The state responded to the motion conceding that appellant would receive a lower sentence under the 1994 guidelines. Attached to appellant's motion was a newly calculated 1994 guidelines scoresheet in which appellant entered victim injury points for severe injury (40 points). The trial court determined that appellant was entitled to relief under Heggs and resentenced appellant using the same entries used by appellant in the scoresheet he submitted. The permitted range was 42.7 to 71.2 months under the 1994 guidelines and under which the original sentence of 80 months could not have been imposed. Appellant was resentenced on December 6, 2000, to 71 months in prison with credit for time served.
Appellant now argues that because the trial court determined that victim injury points were appropriate in this case, appellant's maximum guidelines sentence was increased beyond the statutory five year maximum for his offense and under Apprendi, sentencing him to more than the statutory maximum was error.
In Apprendi, the United States Supreme Court held:
Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. With that exception, we endorse the statement of the rule set forth in the concurring opinions in that case: " t is unconstitutional for a legislature to remove fr
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