JAMES BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Brown appealed the denial of his post-conviction relief motion under Florida Rule of Criminal Procedure 3.850, claiming ineffective assistance of counsel regarding the scoring of his sentencing guidelines. The court affirmed the denial, finding that because Brown entered into a negotiated plea agreement specifying a 16-year sentence, his proper remedy was to seek withdrawal of his plea rather than post-conviction relief.
Although the sentencing guidelines scoresheet improperly classified the second-degree murder charge as a life felony rather than a first-degree felony under Florida Statutes section 782.04(2), Brown's proper remedy for challenging the guidelines scoring in the context of a negotiated plea agreement is to file a motion to withdraw his plea, not seek post-conviction relief.
[1] A defendant seeking to challenge alleged errors in a negotiated sentence, including the scoring of a guidelines scoresheet, must file a motion to withdraw the plea.
[2] A motion for post-conviction relief is not the proper remedy for challenging errors in a negotiated sentence.
Previewing 2 of 4 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“Under section 782.04(2), Florida Statutes, murder in the second degree is a felony of the first degree. The guidelines scoresheet improperly classifies the charge to which appellant pleaded guilty as a life felony rather than a felony of the first degree.”
Establishes that the scoresheet was factually incorrect in its classification of the offense
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Join FLexlaw to unlock all legal intelligenceBrown was charged with first-degree murder using a common pocket knife. He agreed to plead guilty to the reduced charge of second-degree murder for a …
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WENTWORTH, Judge.
Appellant seeks review of an order by which his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850 was denied. We affirm the order, finding that appellant’s proper remedy is to seek correction of the alleged error in his negotiated sentence by way of a motion to withdraw his plea.
Appellant was charged with murder in the first degree with a common pocket knife, in violation of section 782.04(l)(a), Florida Statutes.
Pursuant to a plea bargain, appellant pleaded guilty to a reduced charge of murder in the second degree for which he was to be sentenced to a specific term of 16 years incarceration.
Appellant contends he agreed to be sentenced within the sentencing guidelines. A sentencing guidelines scoresheet for the offense shows that the second degree murder charge was scored under the category of “primary offense at conviction” as a life felony with 165 points. The scoresheet total was 187 points for a presumptive sentence of 12 to 17 years incarceration. Appellant on June 27, 1986, filed a motion for post-conviction relief, alleging ineffective assistance of counsel where counsel improperly permitted the second degree murder charge to be enhanced on the guidelines scoresheet from a first degree felony to a life felony because of the use of a coihmon pocket knife as a weapon during the commission of the crime.
Appellant argued that if the second degree murder charge had been properly scored as a first degree felony, only 136 points would have been assessed under the “primary offense at conviction” category, and his presumptive sentence would have been 7 to 12 years incarceration. The court denied appellant’s motion on the ground that he was sentenced pursuant to a plea agreement which specified a 16 year sentence. The court attached a copy of the signed plea agreement to its order.
Under section 782.04(2), Florida Statutes, murder in the second degree is a felony of the first degree. The guidelines scoresheet improperly classifies the charge to which appellant pleaded guilty as a life felony rather than a felony of the first degree.
However, the plea agreement signed by appellant states a specific term of 16 years incarceration for the reduced charge of second degree murder. Because appellant entered into a negotiated plea and sentence, his proper remedy in challenging the guidelines scoresheet, which may or may not have been the basis for the negotiated 16 year sentence, is a motion to withdraw his plea.
Accordingly, the order is affirmed.
SMITH and SHIVERS, JJ., concur.
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Rowe v. State, 523 So. 2d 620 (Fla. 2d DCA 1988)…cord in the present case we are convinced that the trial court would have imposed the same sentence notwithstanding any possible scoresheet errors. Thus resentencing is not required. Brown v. State, 508 So. 2d 522 (Fla. 2d DCA 1987); Brown v. State, 507 So. 2d 764 (Fla. 1st DCA 1987). Rowe’s final prayer for relief concerns the plea bargain itself. He believes that this bargain should be vacated because it was founded in a material mistake of fact and law. We cannot agree. It is true that a claim of ineffect…
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Derick Bellamy v. State, 534 So. 2d 811 (Fla. 3d DCA 1988)…PER CURIAM. AFFIRMED. See Brown v. State, 507 So. 2d 764 (Fla. 1st DCA 1987).…