       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                FOURTH DISTRICT

                          VIDIEK RODRIGUEZ,
                               Petitioner,
                                    v.

                          STATE OF FLORIDA,
                             Respondent.

                                No. 4D14-2511

                             [January 7, 2015]

    Petition alleging ineffective assistance of counsel to the Circuit Court
for the Seventeenth Judicial Circuit, Broward County; Matthew I. Destry,
Judge; L.T. Case No. 09-2980 CF10B.

   Vidiek Rodriguez, Crawfordville, pro se.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher,
Assistant Attorney General, West Palm Beach, for respondent.

PER CURIAM.

   Vidiek Rodriguez petitions this court alleging that he received
ineffective assistance from his appellate counsel. Rodriguez argues that
counsel should have filed a rule 3.800(b)(2) motion to correct a sentencing
error and argued on appeal that the trial court erred in sentencing a first
time felony offender to prison without ordering a presentence investigation
report as required by rule 3.710(a). The state agrees that Rodriguez may
be entitled to resentencing pursuant to Hernandez v. State, 137 So. 3d 542
(Fla. 4th DCA 2014).

    Accordingly, we grant petitioner a new appeal to allow appellate counsel
to file a rule 3.800(b)(2) motion. This opinion shall be filed with the lower
tribunal and treated as a notice of appeal. If petitioner qualifies for
appointed counsel, the lower court shall appoint counsel to represent him
on the appeal, which will proceed under a new case number.

STEVENSON, FORST and KLINGENSMITH, JJ., concur.

                            *          *          *
Not final until disposition of timely filed motion for rehearing.




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