FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from an order of the Circuit Court for Duval County.
Waddell A. Wallace, Judge.
Wayne Bell, pro se, Appellant.
Jo Bondi, Attorney General, and Heather Flanagan Ross,
Assistant Attorney General, Tallahassee, for Appellee.
appellant challenges the denial of his postconviction motion
brought pursuant to Florida Rule of Criminal Procedure 3.850.
We affirm the trial court's denial of grounds one, two,
four, and five without comment. We also affirm the denial of
ground three insofar as it pertained to the sentence imposed
for the appellant's kidnapping conviction. With regard to
the arguments in ground three that pertain to the
appellant's sexual battery sentences, we reverse and
ground three of his motion, the appellant argued in part that
the trial court improperly imposed habitual violent felony
offender (HVFO) sentences as to counts II through IV for his
convictions of sexual battery with the use of physical force
likely to cause serious personal injury. He alleged that this
offense is a life felony and the offenses in this case were
alleged to have been committed on February 9, 1996, during a
time when it was not permissible to impose an HVFO sentence
for a life felony. The trial court denied this claim,
concluding that these offenses were committed after the
effective date of an amendment to the habitual offender
statute that permitted the habitualization of life felonies.
battery with the use of physical force likely to cause
serious personal injury is a life felony. See §
794.011(3), Fla. Stat. (1995). While it is true that the
habitual offender statute was amended to apply to life
felonies by chapter 95-182, Laws of Florida, effective
October 1, 1995, that amendment was subsequently held to be
unconstitutional. See Sims v. State, 997 So.2d 1166,
1167 (Fla. 3d DCA 2008). The window period for its
unconstitutionality ran from October 1, 1995, through May 24,
1997. Id. (citing State v. Thompson, 750
So.2d 643, 649 (Fla. 1999)). The appellant's offenses
were committed within that window period. Given this
authority, the HVFO designation was not properly imposed as
to the sexual battery convictions.
response to this Court's Toler order, the state conceded that the HVFO
designation should be stricken as to these offenses, but
argued that the appellant is not entitled to a resentencing
hearing because the striking of the designation is a
ministerial act under the circumstances of this case.
However, the striking of the HVFO designation in this case is
not a ministerial act because the trial court will have
discretion in imposing new sentences for these counts.
See Jordan v. State, 143 So.3d 335, 339-40 (Fla.
2014) (concluding that a correction to the defendant's
sentence is not a ministerial act where the trial court has
discretion in imposing a new sentence); Thompson v.
State, 987 So.2d 727, 729 (Fla. 4th DCA 2008)
(concluding that while a defendant's presence was not
normally required for the striking of an HFO designation, in
this case, "when the trial court deleted the HFO
designation, there was no justification for a sentence above
the guidelines"). Therefore, the appellant is entitled
to be present and represented by counsel at a resentencing
hearing. See Jones v. State, 61 So.3d 1204, 1205
(Fla. 1st DCA 2011).
on remand, the trial court should strike the HVFO designation
and fifteen-year mandatory minimum sentences as to the sexual
battery counts and conduct a resentencing hearing as to these
counts only. The appellant should be resentenced pursuant to
the 1994 sentencing guidelines, as his offenses were
committed during the time that the 1995 sentencing guidelines
were deemed unconstitutional. See Hawkins v. State,
195 So.3d 1196, 1197 (Fla. 1st DCA 2016) (citing Heggs v.
State, 759 So.2d 620 (Fla. 2000), and Trapp v.
State, 760 So.2d 924 (Fla. 2008)). The trial court will
have discretion to impose upward departure sentences for
these offenses if it provides written reasons. Id. See
also Wheeler v. State, 129 So.3d 469, 469 (Fla. 2d DCA
in part, REVERSED, and REMANDED in part for further
proceedings consistent with this opinion.
ROBERTS, C.J., MAKAR, and JAY, JJ., CONCUR.