                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

PATRICK HAWKINS,                      NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D15-4963

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed July 18, 2016.

An appeal from an order of the Circuit Court for Jefferson County.
Karen A. Gievers, Judge.

Patrick Hawkins, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      The appellant challenges the denial of his postconviction motion seeking

relief pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and

remand.
      In his motion, the appellant argues that he was improperly habitualized

contrary to State v. Thompson, 750 So. 2d 643 (Fla. 1999), for a conviction of

sexual battery with physical force likely to cause serious personal injury. The trial

court denied this claim, concluding that Thompson did not apply.

      Prior to 1995, “life felonies were not subject to habitual felony offender

enhancement.” James v. State, 775 So. 2d 347, 347 (Fla. 1st DCA 2000) (citing §

775.084(4)(a), Fla. Stat. (1993), and Lamont v. State, 610 So. 2d 435, 438 (Fla.

1992)). However, the 1995 amendment to the statute that made it permissible to

sentence a defendant convicted of a life felony as a habitual felony offender was

later deemed unconstitutional by the Florida Supreme Court. James, 775 So. 2d at

347-48 (citing Thompson, 750 So. 2d at 649). Defendants whose sentences were

enhanced based upon the unconstitutional amendment and whose crimes occurred

during the window period are entitled to resentencing under the laws in effect prior

to the amendment. James. This window period ranges from October 1, 1995, to

May 24, 1997. Salters v. State, 758 So. 2d 667, 671 (Fla. 2000).

      In the instant case, the appellant’s habitual felony offender sentence was

imposed for a life felony that was committed on October 16, 1996.               See §

794.011(3), Fla. Stat. (1995) (providing that sexual battery with physical force

likely to cause serious personal injury is a life felony). Therefore it fell within the




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window period and Thompson applies. In response to this Court’s Toler1 order,

the state suggested that the appellant’s claim was untimely, as such claims were

more appropriately raised pursuant to Florida Rule of Criminal Procedure 3.850.

However, the weight of authority holds that such claims may properly be raised

pursuant to rule 3.800(a). See Simmons v. State, 180 So. 3d 244 (Fla. 3d DCA

2015); Wheeler v. State, 129 So. 3d 469 (Fla. 2d DCA 2013); Ford v. State, 868

So. 2d 631 (Fla. 2d DCA 2004); Cook v. State, 866 So. 2d 1291 (Fla. 4th DCA

2004); Bines v. State, 837 So. 2d 1146 (Fla. 1st DCA 2003); Kinsey v. State, 831

So. 2d 1253 (Fla. 2d DCA 2002); Green v. State, 810 So. 2d 1101 (Fla. 1st DCA

2001); Lowe v. State, 786 So. 2d 1194 (Fla. 2d DCA 2001); Lewis v. State, 764

So. 2d 874 (Fla. 4th DCA 2000); Hankerson v. State, 765 So. 2d 982 (Fla. 4th

DCA 2000).

        Accordingly, we reverse and remand for the trial court to resentence the

appellant on the sexual battery count only pursuant to the valid laws in effect at the

time his offenses were committed. See James, 775 So. 2d at 348; Green, 810 So.

2d at 1102. As the appellant’s offense date also falls within the Heggs2 window

period, he should be resentenced pursuant to the 1994 sentencing guidelines. See

Trapp v. State, 760 So. 2d 924, 928 (Fla. 2008); Ford, 868 So. 2d at 632. Upon

resentencing, the trial court will have the discretion to impose an upward departure

1
    Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986).
2
    Heggs v. State, 759 So. 2d 620 (Fla. 2000).
                                             3
sentence if permissible reasons are found. Id.

      REVERSED and REMANDED for further proceedings consistent with this

opinion.

BILBREY, KELSEY, and M.K. THOMAS, JJ., CONCUR.




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