IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA

December 6, 2017

WILFRED PAUL MILLER )

) Appellant, ) ) v. ) Case No. 2D16-217 ) STATE OF FLORIDA, ) ) Appellee. ) ________________________________ )

BY ORDER OF THE COURT: Upon consideration of the motion for rehearing filed by the ap pellant on July 28, 2017, IT IS ORDERED that the appellant's motion for rehearing is gra nted. The opinion dated July 12, 2017, is withdrawn and the attached opinion is s ubstituted therefor. No

further motions for rehear ing will be considered.

I HEREBY CERTIFY T HE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.

MARY ELIZABETH KUENZEL, CLERK-2- IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT WILFRED PAUL MILLER, ) ) Appellant, ) ) v. ) Case No. 2D16-217 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) Opinion filed December 6, 2017. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Polk County; John K. Stargel, Judge. Wilfred Paul Miller, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and David E. Campbell, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM. Wilfred Paul Miller appeals the order denying in part and gra nting in part his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). 1 We reverse and remand for further proceedings.

1 Mr. Miller appeals only that portion of the order that denied r elief as to counts four and five. See Fla. R. App. P. 9.140(b)(1)(D).-3- Mr. Miller pleaded to attempted sexual battery of a child unde r twelve (count three), sexual battery of a child over twelve (count six ), and four counts of committing a lewd, lascivious, or indecent assault or act upon or in the presence of a child (counts one, two, four, and five). The information refle cts that counts one through three occurred between August 15, 1988, and August 15, 1992, an d counts four through six occurred between December 6, 1996, and December 22, 1996. On January 5, 1998, the trial court sentenced Mr . Miller to concurrent probat ionary split sentences of ten years in prison followed by ten years of probation for the two first-degree felonies (counts three and six) and to probationary split sentences of f ive years in prison followed by ten years of probation for the second-degree feloni es (counts one, two, four, and five). On March 28, 2007, the trial court revoked Mr. Mill er's probation and imposed concurrent twenty-year sentences for each conviction. Mr. Miller filed a rule 3.800(a) motion asserting that the twe nty-year sentences for the second-degree felony convictions are illegal because they exceed the fifteen-year statutory maximum. The postconviction court denie d the motion, reasoning that Mr. Miller's lowest permiss ible sentence for these crimes under the criminal punishment code is twenty years, making twenty years the approp riate sentence. This court reversed, explaining that the postconviction court erred as a matter of law because Mr. Miller's offenses pr edated the criminal punishment code. Miller v. State, 177 So. 3d 95, 97 (Fla. 2d DCA 2015). On remand, the postconviction court granted the motion as to c ounts one and two but denied the motion as to counts four and five, reaso ning: "The 1994 sentencing guidelines scoresheet was prepared for Counts 4, 5, and 6, and accounted-4- for a recommended range between 210 months and 350 months. The Defendant's sentence of 240 months on counts 4 and 5 was therefore legally imposed." However, the sentencing guideli nes scoresheet that the postcon viction court attached to its order is titled "October 1, 1995 Rule 3.9 91(A) Sentencing

Guidelines Scoresheet." The info rmation attached to the postco nviction court's order reflects that Mr. Miller committed the crimes charged in counts four and five in December of 1996, so the postconviction record reflects that he is entitled to sentencing under the 1994 version of the guide lines. See Heggs v. State, 759 So. 2d 620, 630-31 (Fla. 2000) (holding that the 1995 amendment to the sentencing guidelines was "void in its entirety" and remanding for resentencing in accordance with the valid laws in effect on the dates of his offenses); see also Trapp v. State , 760 So. 2d 924, 928 (Fla. 2000) (holding that the window for challenging sentences imposed unde r the invalid amendment to the guidelines com menced on October 1, 1995, and c losed on May 24, 1997). While the 1995 scoreshee t shows that the guidelines rec ommended sentence exceeds the fifteen-year statutory maximum, see Mays v. State, 717 So. 2d 515, 516 (Fla. 1998) (interpreting section 921.001(5), Florida Statutes (1995), to require the "true" recommended guidelines sentence be imposed, absent a departure, if it exceeds the statutory maximum), the postconviction record does not show tha t twenty years is a lawful sentence under the 1994 guidelines. Accordingly, we rev erse and remand for further proceedings.

Reversed and remanded.

SILBERMAN, MORRIS, and BADALAMENTI, JJ., Concur.