JAMES EDWARD LANG, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court properly scored the primary offense but failed to sufficiently refute the defendant's claim regarding the scoring of prior offenses.
[1] A defendant's claim of ineffective assistance of counsel based on the alleged improper scoring of prior offenses on a sentencing guidelines scoresheet may warrant postcon…
[2] A trial court's order denying postconviction relief must sufficiently refute the defendant's factual assertions to preclude further proceedings.
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Join FLexlaw to unlock all legal intelligenceThe defendant claimed ineffective assistance of counsel due to errors in his sentencing guidelines scoresheet. Specifically, he argued his primary off…
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PER CURIAM.
James Edward Lang appeals the summary denial of his motion for postconviction relief. We affirm in part and reverse in part.
In a previous appeal we remanded for further consideration of Lang’s claim of ineffective assistance of counsel. Lang v. State, 557 So. 2d 679 (Fla. 2d DCA 1990). Lang had asserted that trial counsel failed to object to two separate errors on his sentencing guidelines scoresheet. The first omission dealt with Lang’s “primary offense,” armed robbery. This allegedly was scored as a life felony,, when in fact it is a first degree felony punishable by life. § 812.13(2)(a), Fla.Stat. (1989). Attached to the trial court’s latest order is a copy of the scoresheet, which indicates that the armed robbery conviction was properly scored. We therefore affirm the trial court with respect to the matter of Lang’s primary offense.
Lang also alleged that certain offenses were scored as “prior record” when in fact they should have been “additional offenses at conviction.” Specifically, he admitted to one armed robbery (1985), one residential burglary (1986), and numerous third degree felonies (1986), and stated that he was on community control for all these offenses when he committed the 1988 robbery. The scoresheet reflects no points for “additional offenses” but a substantial number for “prior record.” The end result was a sentence in the 17-22 year range; this is more than would have been recommended had these offenses been scored as Lang suggests.
If Lang’s factual assertions are correct, his argument would appear to have merit. See Small v. State, 547 So. 2d 273 (Fla. 2d DCA 1989); Gonzalez v. State, 534 So. 2d 1220 (Fla. 2d DCA 1988); DeVille v. State, 529 So. 2d 319 (Fla. 2d DCA 1988). Neither the trial court’s order nor its attachments sufficiently refute this portion of Lang’s motion. Accordingly, we remand for further proceedings with respect to this one question. Affirmed in part, reversed in part, and remanded with instructions.
THREADGILL, A.C.J., and PARKER and PATTERSON, JJ., concur.
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Cited By
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Huffman v. State, 611 So. 2d 2 (Fla. 2d DCA 1992)…wledge that Johnson v. State, 525 So. 2d 964 (Fla. 1st DCA 1988), appears to call for a contrary result. The failure to object to an incorrect scoring of prior record can in some instances constitute ineffective assistance of counsel. Lang v. State, 571 So. 2d 487 (Fla. 2d DCA 1990); Lanier v. State, 478 So. 2d 1184 (Fla. 2d DCA 1985). Huffman does not make this claim, and in any event would be barred from doing so by the two-year limitations period established in rule 3.850. . Only if all three errors asser…
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Lewis v. State, 613 So. 2d 115 (Fla. 4th DCA 1993)…ce of counsel. As to the claimed ineffective assistance of counsel due to counsel’s failure to object to the improper scoring of appellant’s prior convictions, we note that such claims are cognizable by way of a rule 3.850 motion. See Lang v. State, 571 So. 2d 487 (Fla. 2d DCA 1990). We reject the state’s argument that appellant’s assertions regarding his sentence were refuted by a transcript of the sentencing hearing attached to its response below. No transcript of the hearing is attached to the state’s resp…
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Pilkington v. State, 734 So. 2d 1153 (Fla. 2d DCA 1999)…rmed in all other respects. Pilkington alleges that his trial counsel was ineffective for failing to object to the reasons given to support his upward departure sentence. Such a claim is cognizable in a rule 3.850 motion. See, e.g., Lang v. State, 571 So. 2d 487 (Fla. 2d DCA 1990) (holding that failure to object to a scoresheet error and thereby preventing review on direct appeal is cognizable as ineffective assistance of counsel). If Pilkington’s allegations are true, neither reason given for departure is…
Authorities Cited
- DeVILLE v. State, 529 So. 2d 319 (Fla. 2d DCA 1988)
- Small v. State, 547 So. 2d 273 (Fla. 2d DCA 1989)
- Gonzalez v. State, 534 So. 2d 1220 (Fla. 2d DCA 1988)
- Lang v. State, 557 So. 2d 679 (Fla. 2d DCA 1990)