ANGELO V. DISAVOIA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Angelo DiSavoia appealed the summary denial of his motion to expunge false information from his sentencing record. The court affirmed the denial, holding that DiSavoia failed to raise his claims regarding allegedly false prior conviction information through proper procedural channels and showed no connection between any false information and his actual sentence.
The court affirmed the summary denial, holding that DiSavoia's claims regarding false prior record information were waived because they were not raised by contemporaneous objection at sentencing. Such fact-bound questions may not be resurrected in postconviction relief motions absent a showing of ineffective assistance of counsel. Additionally, DiSavoia failed to demonstrate how any false prior record affected his sentence, as his scoresheet reflected no points for prior record.
[1] A defendant must raise contemporaneous objections to the accuracy of information in a presentence investigation report to preserve the issue for postconviction relief, ab…
[2] Allegations of false information regarding prior felony convictions at sentencing are waived if not objected to at the time of sentencing or raised on direct appeal.
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“if a defendant, at sentencing, disputes the extent of his prior record the state must present corroboration of hearsay statements in the presentence investigation”
Establishes the procedural requirement for challenging prior conviction information at sentencing
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Join FLexlaw to unlock all legal intelligenceDiSavoia was sentenced in 1984 to ten years for insurance fraud and other offenses, which represented a departure from the three-year guideline recomm…
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PER CURIAM.
Angelo DiSavoia appeals from the summary denial of his “motion [to] expunge false information.” Like the trial court, we are somewhat at a loss how to characterize a pleading which “in reality appears to be a mixture of requested civil relief, extraordinary remedies, a request to expunge records, injunctive relief and other matters.”
To the extent the motion represents an attempt to correct DiSavoia’s sentence, we find as follows: In 1984 DiSavoia received a ten-year sentence for insurance fraud and other offenses. The sentence represented a departure from the guideline recommendation of three years. DiSavoia appealed and we affirmed without opinion. DiSavoia v. State, 464 So. 2d 560 (Fla. 2d DCA 1985).1 Now DiSavoia alleges that the state “knowingly gave false information regarding prior felony convictions.” He correctly notes that if a defendant, at sentencing, disputes the extent of his prior record the state must present corroboration of hearsay statements in the presentence investigation. Vandeneynden v. State, 478 So. 2d 429 (Fla. 5th DCA 1985). However, we have held that such fact-bound questions must be met with a contemporaneous objection, or else they are deemed waived. Lomont v. State, 506 So. 2d 1141 (Fla. 2d DCA 1987). They may not be resurrected in a motion for postconviction relief except under circumstances indicating ineffective assistance of counsel. Lomont; Lanier v. State, 478 So. 2d 1184 (Fla. 2d DCA 1985).
DiSavois has made no such claim. In fact, he has not shown how any “false” prior record affected his sentence. Attached as an exhibit to his motion is a copy of his sentencing guidelines scoresheet, which reflects no points added for prior record. The trial judge may have considered certain unscorable offenses when deciding to depart from the guidelines, but if so, and if DiSavoia felt this was improper, he was required to argue the matter on direct appeal. Johnson v. State, 502 So. 2d 1352 (Fla. 2d DCA 1987).
As to the remaining issues raised by DiSavoia’s pleading we concur with the tri al court that “no cognizable claim for relief has been set forth.”
Affirmed.
CAMPBELL, A.C.J., and SCHOONOVER and HALL, JJ., concur. . DiSavoia also has prosecuted two appeals pursuant to Fla.R.App.P. 9.140(g), neither of which was successful. See DiSavoia v. State, 497 So. 2d 246 (Fla. 2d DCA 1986) and DiSavoia v. State, 478 So. 2d 58 (Fla. 2d DCA 1985).
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Cited By
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Hayes v. State, 598 So. 2d 135 (Fla. 5th DCA 1992)…(Fla.1983), cert. denied, 464 U.S. 865, 104 S.Ct. 203, 78 L.Ed.2d 177 (1983); Smith v. State, 543 So. 2d 316 (Fla. 5th DCA 1989); Gonzalez-Osorio v. State, 535 So. 2d 644 (Fla. 2d DCA 1988), rev. denied, 544 So. 2d 199 (Fla.1989); DiSavoia v. State, 522 So. 2d 84 (Fla. 2d DCA 1988), rev. denied, 529 So. 2d 693 (Fla.1988). .See Florida Rule of Criminal Procedure 3.800(a). An illegal sentence can be corrected under Rule 3.800 even when there has been an affirmance of the judgment and sentence on direct appeal…
Authorities Cited
- Lomont v. State, 506 So. 2d 1141 (Fla. 2d DCA 1987)
- Vandeneynden v. State, 478 So. 2d 429 (Fla. 5th DCA 1985)
- Lanier v. State, 478 So. 2d 1184 (Fla. 2d DCA 1985)
- Johnson v. State, 502 So. 2d 1352 (Fla. 2d DCA 1987)