ROBERT THOMASON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Thomason appealed his conviction and sentencing following nolo contendere pleas to multiple felonies and misdemeanors. The appellate court affirmed his convictions but reversed his sentencing due to improper application of the sentencing guidelines scoresheet.
The court affirmed the convictions because Thomason failed to file a motion in the trial court to withdraw his plea, which is a prerequisite to appellate review of the voluntariness of a plea. The court reversed the sentencing because the trial court improperly scored only two of the three aggravated battery counts as primary offenses rather than scoring all three together as the guidelines require.
[1] A motion to withdraw a plea in the trial court is a prerequisite to a direct appeal challenging the voluntariness of that plea.
[2] Multiple counts of the same primary offense at conviction must be scored together under the primary offense category on a sentencing guidelines scoresheet.
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Join FLexlaw to unlock all legal intelligence“When a defendant seeks appellate review of the voluntariness of his plea, a motion in the trial court to withdraw the plea is a prerequisite to a direct appeal.”
Establishes the procedural requirement that bars appellate review of plea voluntariness in this case.
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Join FLexlaw to unlock all legal intelligenceThomason was charged in two informations with three counts of aggravated battery, two counts of battery on a law enforcement officer, one count of bur…
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LEHAN, Judge.
Defendant raises two issues on appeal— the voluntariness of his nolo contendere plea and the correctness of his sentencing guidelines scoresheet. We affirm on the first point and reverse on the second.
Defendant was charged in two multicount informations with three counts of aggravated battery, two counts of battery on a law enforcement officer, one count of burglary, and two misdemeanors. Defendant pleaded nolo contendere to all of these charges. On appeal defendant now contends that his plea was not voluntarily and intelligently made. When a defendant seeks appellate review of the voluntariness of his plea, a motion in the trial court to withdraw the plea is a prerequisite to a direct appeal. See Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979). Defendant here has made no such motion. Accordingly, we affirm his convictions.
Defendant’s second point on appeal concerns the preparation of the sentencing guidelines scoresheet. Defendant was sentenced for, inter alia, three counts of aggravated battery, which was the primary offense at conviction. However, only two of these counts were scored under the category of primary offense, and the third count was placed in the category of additional offenses at conviction. This resulted in a total of 233 points, for a recommended sentence in the seven to nine year range. If all three counts of aggravated battery had been properly scored under the category of primary offense at conviction, the total would have been 222 points with a recommended sentence in the five and one-half to seven year range.
The state argues that the scoring procedure which was used makes more sense than the procedure urged by defendant. However, the scoring procedure that was used is incorrect according to Fla.R.Crim.P. 3.701(d) and the guidelines scoresheets themselves which contain a space for scoring multiple counts of the offense denominated as the primary offense at conviction, which indicates that all counts of that primary offense are to be scored together and that “additional offenses at conviction” means those offenses which are a different crime than the primary offense. It does seem anomalous that a defendant should be punished less severely if he commits the primary offense three times than if he commits two counts of the primary offense and one count of another, equally serious crime, but that is the result dictated by the guidelines. The courts and the other parties should, of course, follow the guidelines and should address any perceived incongruities in the guidelines to the Sentencing Guidelines Commission.
Defendant’s convictions are affirmed, and the cause is remanded for resentencing in accordance with this opinion.
CAMPBELL, A.C.J., and SCHOON-OVER, J., concur.
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Citator
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Verne Albert Doner v. State, 515 So. 2d 1368 (Fla. 2d DCA 1987)…om.P. 3.988. We think this means that all counts of the designated primary offense are to be scored together and that the scoresheet category, “additional offenses at conviction,” means offenses different from the primary offense. Thomason v. State, 480 So. 2d 713 (Fla. 2d DCA 1986). Doner’s scoresheet should be corrected to include his remaining 1984 burglary conviction in the primary offense category. Correction of this error will drop Doner one cell on the guidelines matrix. Doner’s second contention is d…
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Peters v. State, 830 So. 2d 191 (Fla. 4th DCA 2002)…s. We now join in the reasoning articulated by the Second District Court of Appeal in Doner v. State, 515 So. 2d 1368 (Fla. 2d DCA 1987), disagreed with for other reasons by Forehand v. State, 524 So. 2d 1054 (Fla. 1st DCA 1988); Thomason v. State, 480 So. 2d 713 (Fla. 2d DCA 1986). In Doner, the court held that when a defendant is being sentenced for multiple counts of the same offense, all of the offenses should be scored as primary offenses. Id. at 1369. Accord Jeter v. State, 604 So. 2d 1250 (Fla. 1st D…
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McKELVIN v. State, 497 So. 2d 951 (Fla. 1st DCA 1986)…1985). Second, the issue of the voluntariness of a guilty plea cannot be raised on direct appeal unless appellant has first made a motion to withdraw the plea in the trial court. Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979); Thomason v. State, 480 So. 2d 713 (Fla. 2d DCA 1986); Chambers v. State, 491 So. 2d 309 (Fla. 4th DCA 1986). Both issues, however, may properly be raised in a motion for post-conviction relief pursuant to Fla.R.Crim.P. 3.850. We therefore affirm the judgment and sentence, but do so…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Counts v. State, 376 So. 2d 59 (Fla. 2d DCA 1979)