ANTHONY LOMONT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anthony Lomont appeals the summary denial of two postconviction motions: one claiming ineffective assistance of counsel and another challenging his guideline scoresheet computation. The court affirms the trial court's denial, finding the ineffective assistance claim insufficient on its face and the scoresheet challenge should have been raised at sentencing or on direct appeal.
The court affirmed the trial court's denial of both motions. The ineffective assistance claim was insufficient on its face. The scoresheet challenge must have been raised at sentencing or on direct appeal and cannot be raised in a postconviction motion because it requires an evidentiary determination rather than being apparent from the face of the record, distinguishing it from the readily apparent errors in Whitfield and Chaplin.
[1] A motion for postconviction relief is insufficient on its face if it alleges ineffective assistance of counsel without further factual support.
[2] A trial court may correct guideline scoresheet errors at any time, even if the matter was not raised at sentencing or on direct appeal.
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Join FLexlaw to unlock all legal intelligence“where the error complained of would require an evidentiary determination, we believe the rule change announced in Whitfield is inapplicable”
Establishes the key distinction that scoresheet errors requiring factual development cannot be corrected in postconviction motions under the Whitfield rule
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Join FLexlaw to unlock all legal intelligenceLomont received a 5-year sentence based on a guideline scoresheet that included three prior felony convictions (63 points plus 15 additional points un…
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DANAHY, Chief Judge.
Anthony Lomont appeals the summary denial of two motions for postconviction relief.
The first motion alleged ineffective assistance of counsel. The trial court ruled that this motion was insufficient on its face. We agree.
The second motion, filed as an addendum to the first, questions the correctness of Lomont’s guideline scoresheet computation. His present 5-year sentence is based in part upon three prior felony convictions, for which Lomont received sixty-three points plus fifteen additional points under the Category 5 “multiplier.” See Fla.R. Crim.P. 3.988(e). In his motion, Lomont now claims that he has only one prior felony conviction.
The trial court held that this matter should have been raised at sentencing or on direct appeal and, therefore, may not be raised in a motion for postconviction relief. We believe this conclusion is correct notwithstanding the recent supreme court opinions in State v. Chaplin, 490 So. 2d 52 (Fla.1986), and State v. Whitfield, 487 So. 2d 1045 (Fla.1986). In Whitfield the supreme court amended rule 3.800(a), Florida Rules of Criminal Procedure, to permit a court to correct guideline scoresheet errors at any time. However, as pointed out in Dailey v. State, 488 So. 2d 532 (Fla.1986), the scoresheet error in Whitfield was readily apparent from the face of the record. Since Whitfield had been convicted of aggravated assault, it was incorrect as a matter of law to add points for “victim injury” because injury is not an element of that offense. Fla.R.Crim.P. 3.701(d)(7). Similarly, Chaplin involved a technical computation error, the scoring of “assault with intent to commit robbery” as a “prior Category 3 [robbery] offense.” On the other hand, where the error complained of would require an evidentiary determination, we believe the rule change announced in Whitfield is inapplicable.
In the present case, had Lomont objected to the scoresheet at the time of sentencing, it would have been necessary for the trial court to require the state to substantiate any hearsay allegations regarding Lo-mont’s record, and a failure to do so could have been raised on appeal. Delaine v. State, 486 So. 2d 39 (Fla. 2d DCA 1986). Alternatively, had Lomont advised counsel of the error, and had counsel failed to make an objection, the result might have been ineffective assistance and thus cognizable in a 3.850 motion. Lanier v. State, 478 So. 2d 1184 (Fla. 2d DCA 1985). However, Lomont does not state whether counsel was apprised of the alleged scoresheet inaccuracy.
For these reasons, the order of the trial court is affirmed. See Hair v. State, 503 So. 2d 449 (Fla. 2d DCA 1987) and Rowe v. State, 496 So. 2d 857 (Fla. 2d DCA 1986).
SCHEB and SCHOONOVER, JJ., concur.
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Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991)…years after the sentencing hearing. This complexity, coupled with a great doubt that this error is fundamental, convinces me that we should not look behind the face of the record to determine whether such a sentence is illegal. Cf. Lomont v. State, 506 So. 2d 1141 (Fla. 2d DCA 1987) (defendant foreclosed on motion for postconviction relief from raising scoresheet calculation error not apparent from face of score-sheet). It seems to me that a defendant might have the option under rule 3.850 to establish that…1 / 2
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Silas v. Morris, 605 So. 2d 511 (Fla. 2d DCA 1992)…out committing a sexual battery,” justifying twenty points for “contact.” But for Karchesky we would affirm. In essence Morris is utilizing rule 3.800(a) to raise a factual dispute not readily apparent from the scoresheet itself. In Lomont v. State, 506 So. 2d 1141 (Fla. 2d DCA 1987), we specifically found such controversies to be outside the scope of rule 3.800(a) as amended in State v. Whitfield, 487 So. 2d 1045 (Fla.1986). However, we believe Karchesky involves a form of scoresheet error which is readily as…
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Brown v. State, 508 So. 2d 522 (Fla. 2d DCA 1987)…ror be preserved by a contemporaneous objection or presented in an appeal. Fla.R.Crim.P. 3.800(a).2 The sentence imposed upon Brown, if his position is factually sound, is illegal. State v. Whitfield, 487 So. 2d 1045 (Fla.1986); see Lomont v. State, 506 So. 2d 1141 (Fla. 2d DCA 1987). The trial court did not impose a presumptive sentence upon Brown; instead it departed upward.3 If his present challenge to the sentence were urged on appeal, and were supported by the record, we would be compelled to reverse in…
Previewing 3 of 40 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- THE Florida BAR v. Rightmyer, 488 So. 2d 532 (Fla. 1986)
- State v. Chaplin, 490 So. 2d 52 (Fla. 1986)
- Rowe v. State, 496 So. 2d 857 (Fla. 2d DCA 1986)
- Lanier v. State, 478 So. 2d 1184 (Fla. 2d DCA 1985)
- Delaine v. State, 486 So. 2d 39 (Fla. 2d DCA 1986)
- Hair v. State, 503 So. 2d 449 (Fla. 2d DCA 1987)