FRANK SALEMI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frank Salemi appeals the summary denial of his motion to correct sentence following a 1989 plea agreement for sexual abuse charges. The court reverses and remands because a subsequent Florida Supreme Court decision (Karchesky v. State) may have affected the validity of his guilty plea by eliminating victim injury points from his sentencing scoresheet.
The trial court's summary denial of Salemi's motion to correct sentence must be reversed and remanded for further proceedings because the record does not conclusively establish that he is entitled to no relief, particularly given the intervening change in law regarding victim injury points.
[1] A summary denial of a motion to correct sentence must be reversed and remanded if the record does not conclusively establish that the movant is entitled to no relief.
[2] A defendant may be entitled to relief from a sentence if a subsequent supreme court decision invalidates a scoring component of the scoresheet used to calculate the sente…
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Join FLexlaw to unlock all legal intelligence“The record does not conclusively establish that he is entitled to no relief. Accordingly, we must reverse and remand for further proceedings.”
Establishes the standard for reviewing summary denials of sentence correction motions—if the record does not conclusively show no entitlement to relief, reversal is required.
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Join FLexlaw to unlock all legal intelligenceIn August 1989, Salemi pleaded nolo contendere to three counts of sexual activity with a child, accepting a suspended sentence of twenty years (one ye…
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[*825] ALTENBERND, Judge.
Frank Salemi appeals the summary denial of his motion to correct sentence. The record does not conclusively establish that he is entitled to no relief. Accordingly, we must reverse and remand for further proceedings.
In August 1989, Mr. Salemi pleaded nolo contendere to three counts of engaging in sexual activity with a child in violation of section 794.041, Florida Statutes (1987). He signed a written plea agreement, recognizing that the maximum penalty for each count was thirty years’ incarceration, but agreeing to a twenty-year suspended sentence. During the suspended sentence, Mr. Salemi was to serve one year of community control and nineteen years’ probation.
At the time Mr. Salemi entered into this agreement, his scoresheet reflected 401 total points, including 120 points for victim injury. The recommended range was twelve to seventeen years.1 Thus, Mr. Salemi’s suspended sentence was technically a one-cell upward departure from the guidelines, although suspension had the effect of providing a significant downward departure. See DeRicciulli v. State, 592 So. 2d 1197 (Fla. 2d DCA 1992).
Thereafter, Mr. Salemi violated community control and received three concurrent terms of twenty years’ imprisonment. See Salemi v. State, 573 So. 2d 117 (Fla. 2d DCA 1991). Mr. Salemi now claims that the supreme court’s subsequent decision in Karchesky v. State, 591 So. 2d 930 (Fla.1992), requires the elimination of the 120 points for victim injury, and that he would not have agreed to the suspended sentence if he had realized that the scoresheet recommended a sentence of twelve years’ incarceration.
Given the leniency of the probationary sentence offered in the plea agreement, one may seriously question Mr. Salemi’s contention that the scoresheet change would have affected his plea.2 Nevertheless, we are constrained 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 does not disclose the dates of the offenses.
. It is noteworthy that the suspended sentence has little effect in this case. Without the suspended sentence, a violation of community control or probation would have allowed for a twenty-two-year sentence under the prepared score-sheet or a seventeen-year sentence under the scoresheet that Mr. Salemi now claims to be correct.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Brannum, 876 So. 2d 724 (Fla. 5th DCA 2004)…tencing guidelines scoresheet reflected a range between 61.35 months and 102.5 months and the trial court sentenced him to eight years in prison, suspended, and two years’ community control to be followed by three years’ probation); Salemi v. State, 636 So. 2d 824, 825 (Fla. 2d DCA 1994) (holding that the "suspended sentence was technically a one-cell upward departure from the guidelines, although suspension had the effect of providing a significant downward departure.”) (citation omitted). . Brannum contend…
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State v. Lamarion Maurice Solomon, 667 So. 2d 937 (Fla. 2d DCA 1996)…, because the suspended prison sentence did not require Solomon to serve the minimum sentence required by the guidelines, the sentence constitutes a downward departure. See State v. Waldo, 582 So. 2d 820 (Fla. 2d DCA 1991). See also Salemi v. State, 636 So. 2d 824 (Fla. 2d DCA 1994). When the record reflects that the trial court was aware it was imposing a departure sentence and failed to provide written reasons for the departure, on remand the trial court must resentence within the guidelines. McGowan v. S…
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Trevino v. State, 647 So. 2d 224 (Fla. 2d DCA 1994)…e argues that had he been aware victim injury points [*225] were improper at the time he entered into his plea bargain, he would not have agreed to his current sentence. As in Morris v. State, 605 So. 2d 511 (Fla. 2d DCA 1992), and Salemi v. State, 636 So. 2d 824 (Fla. 2d DCA 1994), the record in the instant case fails to show whether the sentence imposed pursuant to Trevino’s plea agreement was based on his guidelines score. If it was, then the fact that victim injury points were improperly scored could mak…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Silas v. Morris, 605 So. 2d 511 (Fla. 2d DCA 1992)
- Harrelson v. State, 616 So. 2d 128 (Fla. 2d DCA 1993)
- Walls v. State, 627 So. 2d 107 (Fla. 2d DCA 1993)
- ASH v. State, 624 So. 2d 418 (Fla. 2d DCA 1993)
- Salemi v. State, 573 So. 2d 117 (Fla. 2d DCA 1991)
- DeRICCIULLI v. State, 592 So. 2d 1197 (Fla. 2d DCA 1992)