CLIFFORD WILSON ASH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Clifford Ash appeals the summary denial of his motion to correct an allegedly erroneous sentencing guidelines scoresheet that included victim injury points. The court reverses because the record does not conclusively establish whether the plea agreement was for a guideline-consistent sentence, requiring remand for further proceedings.
The court reversed the summary denial of Ash's motion to correct sentence and remanded because the record does not provide conclusive proof that Ash is not entitled to relief, and the trial court must reexamine the files and records to determine whether Ash is entitled to relief under the Karchesky standard.
[1] A defendant is entitled to relief from a sentence that includes points for victim injury on the sentencing guidelines scoresheet if those points were not considered in th…
[2] If the record does not conclusively demonstrate that a defendant is not entitled to relief from an erroneous sentencing scoresheet, an evidentiary hearing may be required…
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“The specific length of the sentence ... was made a specific condition of the plea. M-though a guideline scoresheet was prepared — one which ... coincides with the actual sentence — it is not certain that the state agreed, in addition to reducing the charges, that [appellant] should receive a guideline-consistent sentence.”
Establishes the ambiguity present in plea agreements where a fixed sentence was negotiated but it is unclear whether guideline consistency was also part of the agreement.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAsh entered a plea to attempted sexual battery with a sentencing guidelines scoresheet that included points for victim injury. The state offered the p…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Clifford Ash appeals the summary denial of his motion to correct sentence. We reverse.
The motion is based on Karchesky v. State, 591 So. 2d 930 (Fla.1992). Ash, who entered a plea to attempted sexual battery, contests the inclusion of points for “victim injury” on his sentencing guidelines scoresheet.
This appeal is controlled by our previous decision in Morris v. State, 605 So. 2d 511 (Fla. 2d DCA 1992). Morris involved three separate defendants whose cases we consolidated in order to confront the Karchesky issue. One of the three originally was charged with capital sexual battery. The state agreed to reduce that charge in exchange for a plea. It appeared that this plea offer also called for a fixed length of sentence:
The specific length of the sentence ... was made a specific condition of the plea. M-though a guideline scoresheet was prepared — one which ... coincides with the actual sentence — it is not certain that the state agreed, in addition to reducing the charges, that [appellant] should receive a guideline-consistent sentence.
605 So. 2d at 513-14 (footnote omitted).
The facts of the present case are virtually identical. It may be that the scoresheet was not taken into account in the state’s decision to offer a plea to Ash, his decision to accept it, or the trial court’s decision to follow the recommendation. If so, the “victim injury” error may be harmless. Morris; Cf. Orsi v. State, 515 So. 2d 268 (Fla. 2d DCA 1987). Ash, however, insists that the plea was for a guideline sentence in addition to a reduction in the charge. The record before us does not provide conclusive proof either way, requiring us to reverse for further proceedings consistent with Morris.
After remand the circuit court should reexamine the files and records in this ease in an effort to determine whether anything therein conclusively demonstrates that Ash is not entitled to relief. If so, the court may again deny the motion, attaching to its order whatever documentation it has relied upon. Otherwise this case may require evidentiary proceedings to determine the true nature and complete extent of the plea agreement. Any party aggrieved by the subsequent action of the circuit court must file a timely notice of appeal to obtain further appellate review.
Reversed.
FRANK, C.J., and DANAHY and CAMPBELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Salemi v. State, 636 So. 2d 824 (Fla. 2d DCA 1994)…strained to reverse the trial court’s order and remand for proceedings pursuant to Morris v. State, 605 So. 2d 511 (Fla. 2d DCA 1992). See also Harrelson v. State, 616 So. 2d 128 (Fla. 2d DCA), review denied, 624 So. 2d 268 (Fla.1993); Ash v. State, 624 So. 2d 418 (Fla. 2d DCA 1993); Walls v. State, 627 So. 2d 107 (Fla. 2d DCA 1993). Reversed and remanded. RYDER, A.C.J., and PATTERSON, J., concur. . Apparently, these offenses were committed pri- or to the creation of permitted range sentencing. Our record…
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Gentile v. State, 673 So. 2d 76 (Fla. 5th DCA 1996)…t had agreed to the specific sentence imposed. See also Master v. State, 637 So. 2d 268 (Fla. 1st DCA 1994) (departure due to improper scoring does not render plea illegal when plea was not conditioned on receiving guideline sentence); Ash v. State, 624 So. 2d 418 (Fla. 2d DCA 1993) (if scoring was not considered in state’s decision to offer plea or in the defendant’s and the court’s decision to accept the plea offer, scoring error is harmless); Boerstler v. State, 622 So. 2d 184 (Fla. 1st DCA 1993) (sentence…
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Tierney v. State, 656 So. 2d 553 (Fla. 2d DCA 1995)…is for the victim injury points. Therefore, we remand to the trial court for a hearing so the court can determine this issue. These points may be reimposed if victim injury is proven. Salemi v. State, 636 So. 2d 824 (Fla. 2d DCA 1994); Ash v. State, 624 So. 2d 418 (Fla. 2d DCA 1993). If no actual injury can be proven, the scoresheet must be corrected and the appellant resentenced. Harrelson v. State, 616 So. 2d 128 (Fla. 2d DCA), rev. denied, 624 So. 2d 268 (Fla.1993). The state argues any error in the score…
Authorities Cited
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Silas v. Morris, 605 So. 2d 511 (Fla. 2d DCA 1992)
- Dep't of Hwy. Safety & Motor Vehicles v. Roberts, 515 So. 2d 268 (Fla. 5th DCA 1987)
- Orsi v. State, 515 So. 2d 268 (Fla. 2d DCA 1987)