GREGORY OSCAR TREVINO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trevino appealed the denial of his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a), arguing that improper victim injury points were included in his guidelines scoresheet at the time he entered his plea agreement. The court reversed and remanded because the record did not conclusively establish whether his sentence was based on the guidelines score, making it unclear whether the scoresheet error affected his sentence length.
The court held that reversal and remand were necessary because the record failed to conclusively establish whether Trevino's sentence was based on his guidelines score. If it was, the improper victim injury points could have made a difference in the sentence length; if not, any error would be irrelevant.
[1] A motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a) must be granted if the record fails to conclusively establish that the movant is…
[2] A defendant may challenge a sentence imposed pursuant to a plea agreement if the sentence was based on an improperly scored guidelines scoresheet.
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Join FLexlaw to unlock all legal intelligence“Since the record fails to conclusively establish that Trevino is not entitled to relief, we reverse and remand for further proceedings.”
Establishes the court's standard for reversal when the record is unclear on a material issue.
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Join FLexlaw to unlock all legal intelligenceIn August 1989, Trevino was charged with two counts of sexual battery and one count of kidnapping. In December 1989, pursuant to a plea agreement, he …
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PER CURIAM.
Gregory Oscar Trevino challenges the denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Since the record fails to conclusively establish that Trevino is not entitled to relief, we reverse and remand for further proceedings.
In August 1989, Trevino was charged with two counts of sexual battery and one count of kidnapping. Pursuant to a plea agreement entered into in December 1989, however, Trevino pled guilty to reduced charges, consisting of two counts of committing a lewd and lascivious act. As part of his plea bargain, Trevino also agreed to a fifteen-year suspended prison term, followed by two years’ community control and thirteen years’ probation. In May 1991, Trevino was found to be in violation of his community control and was, thus, resenteneed to two concurrent terms of fifteen years’ imprisonment.
At the time Trevino entered into his plea agreement, his guidelines scoresheet included 80 points for victim injury. Trevino now contends that, pursuant to Karchesky v. State, 591 So. 2d 930 (Fla.1992), such points should not have been scored. He argues that had he been aware victim injury points 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 make a difference “if scoresheet error arguably contributed to the length of that sentence.” Morris, 605 So. 2d at 514. If Trevino’s sentence was not based on his guidelines score, then any error here would be irrelevant. Id. Since it is unclear which is the case in this instance, remand is necessary.
Accordingly, the instant cause is reversed and remanded for further proceedings pursuant to Morris, Salemi, and cases cited therein.
Reversed and remanded.
HALL, A.C.J., and THREADGILL and QUINCE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Montague v. State, 656 So. 2d 508 (Fla. 2d DCA 1995)…cing errors will continue to plague the appellate courts in postconvietion proceedings even after the enactment of section 921.001(8), Florida Statutes (Supp.1992), see, e.g., Spring v. State, 647 So. 2d 974 (Fla. 1st DCA 1994) and Trevino v. State, 647 So. 2d 224 (Fla. 2d DCA 1994), we certify the following question of great public importance: HAS PINACLE V. STATE, 20 FLA.L.WEEKLY S196 [654 SO.2d 908] (FLA. APR. 27, 1995), OVERRULED LINKOUS V STATE, 618 SO.2d 294 (FLA. 2D DCA), REVIEW DENIED, 626 SO.2d 208…
Authorities Cited
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Silas v. Morris, 605 So. 2d 511 (Fla. 2d DCA 1992)
- Salemi v. State, 636 So. 2d 824 (Fla. 2d DCA 1994)