5D00-2894 Nix v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D00-2894

Case Date: 09/24/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2001 TONY LEE NIX, Appellant, v. Case No. 5D00-2894 STATE OF FLORIDA, Appellee. / Opinion filed September 28, 2001 3.850 Appeal from the Circuit Court for St. Johns County, Robert K. Mathis, Judge. Tony Lee Nix, Chattahoochee, pro se. Robert A. Butterworth, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee. SAWAYA, J. Tony Nix, pro se, appeals the denial of his 3.850 motion after an evidentiary hearing was held addressing only some of his claims. Our thorough review of the record shows that of the nine issues advanced on appeal, only grounds eight and nine which raise possible sentencing errors have merit and require an evidentiary hearing. We remand for a hearing thereon as explained seriatim. Nix was convicted of burglary and grand theft after a jury trial in September 1997 and was sentenced to 176.9 months of incarceration. The appeal of this judgment and sentence was per curiam affirmed by this court. Nix v. State, 727 So. 2d 948 (Fla. 5th DCA 1998). Nix

then filed the instant 3.850 motion for post conviction relief, an amendment and then an addendum thereto. In his motions, Nix asserted, inter alia, that he was entitled to relief under Heggs v. State, 759 So. 2d 620 (Fla. 2000), because an unconstitutional 1995 guidelines score sheet had been used to calculate his sentence and that his sentence was illegal because he had been sentenced both as a habitual offender and under the guidelines, contrary to King v. State, 681 So. 2d 1136 (Fla. 1986), receded from on other grounds, Carter v. State, 786 So. 2d 1173 (Fla. 2001). As to his Heggs claim, Nix argued below that the sentence imposed under the 1995 guidelines would have been a departure sentence under the 1994 guidelines. He alleged that the score sheet total under the 1994 guidelines would have been 91.4 months as opposed to the 176.9 month total under the 1995 guidelines. He pointed out that he had committed the offenses on July 29, 1996, which was within the window period of Heggs. See Trapp v. State, 760 So. 2d 924, 928 (Fla. 2000) (holding that the window period opened on October 1, 1995, and closed on May 24, 1997). Thus, Nix concluded, he is entitled to resentencing. The trial court summarily denied this claim on the basis that Nix was sentenced as a habitual offender and, therefore, his sentence was not subject to the sentencing guidelines, citing Arce v. State, 762 So. 2d 1003 (Fla. 4th DCA 2000) (affirming denial of motion to correct sentence where the defendant was sentenced as a habitual offender to a twenty-year prison term; noting that under section 775.084(4)(e), a habitual offender sentence is not subject to the guidelines provisions of section 921.001). The trial court did not attach any documents to support its conclusion that Nix was sentenced as a habitual offender. On appeal, Nix argues that although he was found to be a habitual offender, he was in 2

fact sentenced pursuant to the 1995 guidelines. He attached a portion of the sentencing transcript which shows: THE COURT: Well, no, I wouldn't do it that way. I would do it the way

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