Spacco v. State

762 So. 2d 597 (2000)

James Paul SPACCO, Appellant,
v.
STATE of Florida, Appellee.

No. 5D00-1459.

District Court of Appeal of Florida, Fifth District.

August 4, 2000.

James Paul Spacco, Raiford, pro se.

Robert A. Butterworth, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.

COBB, J.

Defendant, James Paul Spacco, appeals the summary denial of his Rule 3.850 motion. He claims that he is entitled to be resentenced because the trial court applied the 1995 sentencing guidelines, which the Florida Supreme Court determined were unconstitutional in Heggs v. State, 759 So. 2d 620 (Fla.2000). The trial court denied defendant's motion because his offenses were committed outside the window period. However, the trial court did not have the benefit of Trapp v. State, 760 So.2d 924 (Fla.2000), in which the supreme court held that the applicable window period was October 1, 1995 through May 24, 1997. Defendant's offense was committed within that time period and he alleges that he was adversely affected. Therefore, we reverse the trial court's order. On remand, since the sentence was the result of a negotiated plea, the state shall have the option of agreeing to a sentence under the 1994 guidelines, or withdrawing from the plea bargain and taking defendant to trial. See Parker v. State, 25 Fla. L. Weekly D1465, ___ So.2d ___, 2000 WL 1144594 (Fla. 5th DCA Aug. 11, 2000).

REVERSED AND REMANDED.

HARRIS and SAWAYA, JJ. concur.