### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

JOSE ANGEL MALDONADO
, Appellant,

v.

STATE OF FLORIDA
, Appellee

.

No. 4D 21

- 1396

[ November 17, 2021 ]

Appeal of order denying rule 3.800 motion from the Circuit Court for

the Nineteenth Judicial Circuit, Martin County ; Sherwood Bauer, Jr.

, Judge; L.T. Case No. 431996CF000135A

.

Jose Angel Maldonado, Indiantown, pro se.

Ashley Moody, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assis tant Attorney General, West Palm Beach, for appellee.

K LINGENSMITH

, J

.

Jose Maldonado appeals the trial court’s order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a).

He asserts that he is entitled to a n ew sentencing hearing using the 1994 sentencing guidelines pursuant to the Florida Supreme Court’s decision

in Heggs v. State , 759 So. 2d 620 (Fla. 2000). T he State counter s that Maldonado is not entitled to resentencing because the trial court’s reasons

for its upward departure were valid under both the 1994 and 1995 guidelines. We agree with the State and affirm the denial of Maldonado’s

motion for the reasons stated below. We also affirm without comment all

other claims raised in his motion.

In 1996, Maldonado entered a no

- contest plea to attempted first

- degree murder and burglary of a structure while armed. A scoresheet was prepared pursuant to the 1995 sentencing guidelines, which reflected his sentencing range as 124.2 to 207 months in pri son. However, the trial court sentenced him outside the guidelines to 480 months in prison, providing two written reasons for its upward departure: “(1) the victim was especially vulnerable due to age and physical or mental disability, [and] (2)2 the victi m suffered extraordinary physical and/or emotional trauma and permanent physical injury or was treated with particular cruelty.”

Maldonado argues that the 1995 guidelines were invalidated by Heggs

, and that the 1994 guidelines should have been used, which provided for a sentencing range of only 103.65 to 172.75 months in prison. The trial

court denied Maldonado’s motion.

The standard of review from the denial of a rule 3.800(a) motion to

correc t illegal sentence is de novo. Jimenez v. State , 265 So. 3d 462, 476 n.10 (Fla. 2018).

In Heggs , the Florida Supreme Court invalidated certain provisions of the 1995 sentencing guidelines. 759 So. 2d at 627. The Court acknowledged that its decision wou ld only require the resentencing of defendants who were “adversely affected” by the application of the 1995 guidelines, as amended by Chapter 95

- 184. See id. “ [I] f a person ’ s sentence imposed under the 1995 guidelines could have been imposed

under the 19 94 guidelines (without a departure), then that person shall

not be entitled to relief under our decision here. ” Id. T he Second District interpreted Heggs to hold that a defendant was not “adversely affected” by application of the 1995 guidelines if the d eparture sentence was based on departure reasons valid under both the 1994 and 1995 guidelines. See Ray v. State , 772 So. 2d 18 , 18 (Fla. 2d DCA 2000) ; Kwil v. State , 768 So.

2d 502 , 502 (Fla. 2d DCA 2000 ).

In State v. Lemon , 825 So. 2d 927, 930 (Fla. 2002), the Florida Supreme

Court approved the Second District ’s holding in Ray that the limitation of Heggs to “adversely affected” defendants applied to departure sentences as well as guideline sentences. In Lemon , the trial court sentenced Lemon outside the 1995 guidelines and “gave two written reasons for its upward departure sentence : ‘ offense created substantial risk of death or great bodily harm to many persons or to one or more small children, ’ and ‘ victim was physically attac ked by [Lemon] in the presence of one or more members of the victim ’ s family. ’ ” Id. at 92 8

.

In her motion to correct illegal sentence, Lemon made the same argument as Maldonado does here: that under Heggs she was entitled to be resentenced under the 1994 guidelines. See i d. at 928

– 29. The Florida Supreme Court disagreed and concluded that L emon was not “ adversely

affected ” by application of the 1995 guidelines because her sentence was an upward departure that could have been imposed under either the 1994 or 1995 guidelines. I d. at 931. The Court explained that the statutory aggravated circumstances cited by the trial court were valid under both3 the 1994 and 1995 guidelines, and thus , Lemon was not “ adversely

affected ” by the 1995 guidelines and not entitled to relief under Heggs

. See i d.

Here, like Lemon and Ray , the trial court sentenced Maldonado outside of the guidelines for multiple departure reasons: “ (1) the victim was especially vulnerable due to age and physical or mental disability, [and] (2)

the victim suffered extraordinary physical a nd/or emotional trauma and permanent physical injury or was treated with particular cruelty. ” First,

a victim’s vulnerability was a valid basis for departure under both the 1994 and 1995 guidelines. See § 921.0016(3)(j), Fla. Stat. (199 3 ) (departure from sentencing guidelines is justified where “[t]he victim was especially vulnerable due to age or physical or mental disability”)

.

Additionally, a victim’s suffering of extraordinary trauma, permanent physical injury, and the cruel ty of the crime w ere likewise valid departure ground s under both the 1994 and 1995 guidelines. See § 921.0016(3)( l ), Fla. Stat. (199 3 ) (departure from sentencing guidelines is justified where “[t]he victim suffered extraordinary physical or emotional trauma or

perm anent physical injury, or was treated with particular cruelty”)

.

Thus, Maldonado was not “adversely affected” by the application of the 1995 guidelines at his sentencing because the trial court imposed an upward departure sentence based on statutory aggra vating circumstances

that were valid under both the 1994 and 1995 sentencing guidelines. See

Lemon , 825 So. 2d at 931. As a result, Maldonado is not entitled to resentencing pursuant to Heggs

.

Affirmed.

L EVINE and F ORST

, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.