ROBERT C. HIGHSMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Highsmith appeals the summary denial of his motion for postconviction relief, claiming his nine-year sentence constitutes an improper guidelines departure for a pre-guidelines offense and that he never affirmatively requested a guidelines sentence. The court reverses and remands, finding a prima facie showing of good cause based on Highsmith's claim of ineffective assistance of counsel for failure to discuss sentencing guidelines options.
The court reverses and remands for further proceedings. Although failure to appeal may generally preclude raising an issue via postconviction motion, Highsmith has made a prima facie showing of good cause by alleging ineffective assistance of counsel, which could explain why the issue went undiscovered until long after the appeal deadline expired.
[1] A defendant may raise a claim of ineffective assistance of counsel in a motion for postconviction relief, even if the issue could have been raised on direct appeal, if th…
[2] A defendant's unawareness of the implications of a sentencing guidelines departure, particularly when counsel failed to discuss the option, may constitute good cause for…
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“If this matter were raised and proven on direct appeal, we would be compelled to reverse.”
Establishes that the guidelines departure issue has recognized merit if properly raised on direct appeal.
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Join FLexlaw to unlock all legal intelligenceHighsmith received a nine-year sentence for an offense committed prior to the effective date of the sentencing guidelines. He never affirmatively requ…
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PER CURIAM.
Robert Highsmith appeals the summary denial of his motion for postconviction relief. We reverse for further proceedings.
Of the various complaints raised in the motion, only one has possible merit. Hi-ghsmith alleges that his present nine year sentence constitutes a guidelines departure, that the sentence was imposed for an offense committed prior to the effective date of the sentencing guidelines, and that Highsmith never affirmatively requested to be sentenced under the guidelines.
If this matter were raised and proven on direct appeal, we would be compelled to reverse. See, e.g., Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984). In the present case, however, there was no appeal, and this failure to appeal arguably should preclude Highsmith from raising the issue by way of Florida Rule of Criminal Procedure 3.850. See, e.g., Wahl v. State, 460 So. 2d 579 (Fla. 2d DCA 1984); Chaplin v. State, 473 So. 2d 842 (Fla. 1st DCA 1985). Nevertheless, we decline to affirm on this rationale because we believe the motion makes a prima facie showing of good cause why the issue has not been raised prior to now.
Highsmith has couched his argument in the context of “ineffective assistance of counsel,” claiming that his attorney never discussed the sentencing guidelines option with him either in conference or during the sentencing hearing. In fact, Highsmith states, he remained unaware he was serving a nonparolable sentence until the Parole Commission rejected a hearing examiner’s recommended release date for that reason. If this is true, and Highsmith otherwise felt he had no reason to appeal the conviction, this type of error could go undiscovered until long after the time for appeal had expired. We cannot determine from the record before us that ineffective representation did not contribute to the result claimed by Highsmith.
Upon remand, the trial court should first examine the record to ascertain whether Highsmith affirmatively requested a guidelines sentence. If he did not, the court should then consider Highsmith’s claim that his counsel never discussed the sentencing guidelines option with him and allowed him to be given a guidelines sentence when he had never sought one. If Hi-ghsmith’s position is sustained, the court may either resentence him or simply remove the guidelines proviso from his existing sentence. - See Wright v. State, 478 So. 2d 524 (Fla. 2d DCA 1985). Of course, if the trial court never intended to impose a guidelines sentence, it should simply correct Highsmith’s commitment documents accordingly. We reject Highsmith’s argument that he is entitled to a presumptive guidelines sentence, which he has independently computed at three and one-half years; a trial judge’s decision to exceed the guidelines must be raised, if at all, on appeal. Wahl. Any party aggrieved by the subsequent action of the trial court must file a notice of appeal within thirty days to obtain further appellate review.
Reversed.
GRIMES, A.C.J., and SCHOONOVER and SANDERLIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Arba Earl Barr v. State, 548 So. 2d 819 (Fla. 2d DCA 1989)…l, in recommending that Barr elect to be sentenced under the sentencing guidelines, failed to explain that Barr would thereby be ineligible for parole.* If true, this could constitute ineffective assistance of counsel. See, e.g., Highsmith v. State, 493 So. 2d 533 (Fla. 2d DCA 1986). The trial court conducted an evidentiary hearing on the motion. Barr’s trial counsel was the sole witness at the hearing. She stated that Barr “understood or it was explained to him the significance of [a] guideline sentence.” H…
Authorities Cited
- Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984)
- Wahl v. State, 460 So. 2d 579 (Fla. 2d DCA 1984)
- Chaplin v. State, 473 So. 2d 842 (Fla. 1st DCA 1985)
- Wright v. State, 478 So. 2d 524 (Fla. 2d DCA 1985)