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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
NOT FINAL UNTIL TIME EXPIRES TO
KEITH BINES,
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
v.
CASE NO. 1D01-3779
STATE OF FLORIDA,
Appellee.
_________________________/
Opinion filed February 21, 2003.
An appeal from the Circuit Court for Duval County.
Charles W. Arnold, Jr., Judge.
Nancy A. Daniels, Public Defender; and Carl S. McGinnes, Assistant Public
Defender, Tallahassee, for Appellant.
Charlie Crist, Attorney General; and Thomas D. Winokur Assistant Attorney
General, Tallahassee, for Appellee.
BROWNING, J.
This case number was assigned to three separate notices of appeal filed by
Appellant. The first was on an order denying a motion for postconviction relief filed

pursuant to Florida Rule of Criminal Procedure 3.850. We affirm that order without
further comment. The second was on an order granting a motion to correct
sentencing error filed pursuant to rule 3.800(a). The third was directed toward the
resentencing that stemmed from the granting of that rule 3.800(a) motion. These latter
notices of appeal were redesignated by this Court as a direct appeal from the
resentencing. See King v. State, 795 So. 2d 1086 (Fla. 1st DCA 2001). On this direct
appeal, Appellant is entitled to relief.
Appellant was resentenced because he correctly alleged in his rule 3.800(a)
motion that he should not have been habitualized on his conviction, which was for a
life felony with an offense date between October 1, 1995, and May 24, 1997. See
Green v. State, 810 So. 2d 1101 (Fla. 1st DCA 2002). He appeals the resentencing
because, he alleges, he was neither present nor represented by counsel at the
resentencing. His claim has merit.
A defendant has a right to be present at resentencing from a rule 3.800(a)
motion. Roy v. State, 711 So. 2d 1348 (Fla. 1st DCA 1998). A defendant also has
the right to be represented by counsel at resentencing under a meritorious rule
3.800(a) motion. McDonald v. State, 679 So. 2d 1273 (Fla. 1st DCA 1996). Here,
Appellant alleges that he was denied these rights, and the record does not refute his
allegations. In fact, the record supports his allegations, in that the trial court's order
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on the rule 3.800(a) motion states that "[t]he Clerk of this Court shall do an
Amended/Corrected Judgment and Sentencing Order consistent with [the trial court's
findings]," and that "[t]he Clerk shall send a certified copy of the Amended/Corrected
Judgment and Sentencing Order to the Department of Corrections." Thus, the trial
court erred, the new sentence must be vacated, and Appellant must be resentenced
at a hearing where he is present and is represented by counsel.
Appellant's offense date of May 4, 1997, also falls within the window period
for claims under Heggs v. State, 759 So. 2d 620 (Fla. 1st DCA 2000), which declared
the 1995 sentencing guidelines unconstitutional. See Trapp v. State, 760 So. 2d 924
(Fla. 2000). Therefore, on remand, Appellant should be sentenced under the 1994
sentencing guidelines.
Accordingly, we AFFIRM the order denying Appellant's rule 3.850 motion,
and AFFIRM the order granting the rule 3.800(a) motion to the extent that it strikes
Appellant's habitual violent felony offender designation, but REVERSE the order on
the rule 3.800(a) motion to the extent that it orders resentencing without the presence
of Appellant or his counsel, and REMAND for resentencing under the 1994 guidelines
in the presence of Appellant and his counsel.
DAVIS and POLSTON, JJ., CONCUR.
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