ERNESTO VALDEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a motion to correct an illegal sentence under Rule 3.800(a) is the proper vehicle to challenge incorrect sentencing guideline score sheet calculations, even if not raised on direct appeal.
[1] A motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a) is the proper vehicle to raise the issue of incorrect calculations in sentencing…
[2] A trial court must correct a sentencing guidelines scoresheet when a defendant's plea to lesser included offenses results in a reduction of scoresheet points that would p…
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Join FLexlaw to unlock all legal intelligenceAppellant's convictions were affirmed in part and reversed in part. On remand, he pled guilty to lesser offenses, which should have reduced his senten…
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PER CURIAM.
We reverse the order of the trial court which denied appellant’s motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). In appellant’s direct appeal to this court, we affirmed his convictions for possession of cocaine and drug paraphernalia, but reversed on the other counts and remanded for a new trial on them. Valdez v. State, 613 So. 2d 916 (Fla. 4th DCA1993).
On remand appellant pled guilty to lesser included offenses of simple battery and resisting arrest, which are misdemeanors and which would have reduced his sentencing guideline scoresheet points by 8. Appellant contends that this would have resulted in his category 7 scoresheet totaling 111 points rather than the 119 he originally scored before the reversal and remand and plea. This reduction dropped him one grid or level in the guidelines. With a total of 111 points, his recommended sentencing range is community control or 12 to 30 months incarceration, and the permitted range is any non-state prison sanction or community control or 1 to 3½ years in prison. Thus, the 4½ year sentence he is serving now exceeds the guidelines. Appellant contends that his guidelines scoresheet should have been corrected after his plea to lesser offenses, and that therefore he is entitled to relief pursuant to the provision in Florida Rule of Criminal Procedure 3.800(a) for incorrect calculations in guidelines scoresheets. We agree.
The fact that this court did not in its original or clarified opinions address the matter of a new scoresheet and calculations should not be inferred as a ruling on the issue. Further, we reject the state’s argument that rule 3.800(a) is not the proper vehicle to raise the issue of whether the guideline scoresheet calculations are in error. The use of no scoresheet or the wrong score- sheet may be raised in a rule 3.800(a) motion. White v. State, 600 So. 2d 1234 (Fla. 2d DCA1992).
We therefore reverse the trial court’s denial of appellant’s rule 3.800(a) motion, and remand for resentencing consistent with this opinion.
GUNTHER, POLEN and FARMER, JJ., concur.
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Evins v. State, 690 So. 2d 675 (Fla. 3d DCA 1997)…was later reversed was listed on the scoresheet, then the defendant’s sentence must be corrected accordingly. See Brown v. State, 661 So. 2d 26 (Fla. 2d DCA 1994)(reversal of conviction which had been scored required resentencing); Valdez v. State, 624 So. 2d 857 (Fla. 4th DCA 1993). Reversed and remanded for proceedings consistent with this opinion. . Which we treat as a 3.850 motion.…
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Smith v. State, 648 So. 2d 1259 (Fla. 4th DCA 1995)…nt. We note in passing that appellant refused a curative instruction on the grounds that it was ineffective as worded. He did not offer a corrective instruction. As we held in Valdez v. State, 613 So. 2d 916, 918 (Fla. 4th DCA), appeal after remand, 624 So. 2d 857 (Fla. 4th DCA 1993), it is improper for the state to comment on possible criminal penalties in closing argument. We reiterate that rule here and caution that its violation may very well result in unnecessary expenditures of time and money where retr…
Authorities Cited
- Valdez v. State, 613 So. 2d 916 (Fla. 4th DCA 1993)
- Brunson v. State, 600 So. 2d 1234 (Fla. 4th DCA 1992)