WILBERT LEE HOLLAND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Wilbert Lee Holland appeals the summary denial of his post-conviction motion under Florida Rule of Criminal Procedure 3.800(a), challenging his sentencing. The appellate court affirms the denial of most claims but reverses and remands regarding whether Holland's sentences for certain offenses exceeded statutory maximums, finding the record incomplete for appellate review.
The court affirms denial of relief on the victim injury scoring claim as not cognizable in a Rule 3.800(a) proceeding and finds the attempted sexual battery scoring error harmless. However, the court reverses and remands on the illegal sentence claim because the exhibits attached to the trial court's order are incomplete, making it impossible to determine whether sentences exceeded statutory maximums.
[1] A claim of sentencing errors not readily ascertainable from the face of the record is not cognizable in a rule 3.800(a) proceeding.
[2] An incorrectly scored felony degree is harmless error if it does not result in the defendant being moved into a lower guideline cell.
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 sentences imposed for the second and third degree felonies were in excess of those permitted by statute. Under these circumstances, we must vacate.”
Establishes that incomplete exhibits prevented appellate review of whether sentences exceeded statutory maximums, requiring reversal and remand.
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Join FLexlaw to unlock all legal intelligenceOn December 6, 1991, Holland was sentenced to twenty years in prison followed by six years probation for multiple offenses including attempted robbery…
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ANTOON, Judge.
Wilbert Lee Holland (defendant) appeals the trial court’s summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.800(a). Because we cannot determine whether the trial court considered the defendant’s claim that his sentences exceeded the statutory máximums, we must reverse on this issue. In all other respects, we affirm.
On December 6, 1991, the defendant was sentenced for the crimes of attempted robbery with a deadly weapon,1 robbery with a deadly weapon,2 kidnapping,3 armed burglary of a dwelling,4 three counts of aggravated assault -with a deadly weapon,5 and attempted sexual battery.6 The category 9 scoresheet used at sentencing reflected a total of 323 points corresponding to a 9-22 year permitted range. The defendant was sentenced to twenty years in prison followed by six years probation.
In his motion the defendant contended that he was entitled to receive post-conviction relief because 1) the sentencing score-sheet contained errors resulting in an improper departure from the guidelines, and 2) the sentences imposed for the aggravated assault, attempted robbery and attempted sexual battery exceed the statutory maximum allowed by law. The trial court summarily denied the motion.
First, the defendant asserts that the trial court erred in scoring 32 points for victim injury. Specifically, the defendant maintains that the state failed to establish actual physical injury so as to justify the scoring of victim injury points. This claim is not cognizable in a rule 3.800(a) proceeding because any alleged error is not readily ascertainable from the face of the record. State v. Callaway, 658 So. 2d 983 (Fla.1995); Davis v. State, 661 So. 2d 1193 (Fla.1995); Pace v. State, 662 So. 2d 1001 (Fla. 1st DCA 1995).
Defendant next argues that the offense of attempted sexual battery was erroneously scored as a first degree felony. The defendant is correct that the offense of attempted sexual battery was incorrectly scored as a first degree felony; however, the error does not move the defendant into a lower guideline cell, and therefore the error is harmless.
The defendant further seeks relief by arguing that the sentences imposed for the aggravated assault, attempted robbery, and attempted sexual battery convictions are illegal because they exceed the maximum authorized by law for second and third degree felonies. The exhibits attached to the order denying the defendant’s motion are incomplete making it impossible for this court to determine whether the sentences for the second and third degree felonies were in excess of those permitted by statute. Under these circumstances, we must vacate. In so doing, we note that, if the sentences exceed the statutory maximum, then they are illegal, entitling the defendant to relief at any time, even if the motion seeking relief is successive. Ford v. State, 667 So. 2d 455 (Fla. 4th DCA 1996).
The order of the trial court is vacated and this matter remanded with instructions that the trial court attach the entire judgments and corresponding sentences to its order denying relief, or, in the alternative, correct the defendant’s sentences.
AFFIRMED in part, REVERSED in part, REMANDED.
GOSHORN and HARRIS, JJ., concur. . A second degree felony under sections 812.03(2)(a) and 777.04, Florida Statutes (1991).
. A first degree felony punishable by life under section 812.13(2)(a), Florida Statutes (1991).
. A first degree felony punishable by life under section 787.01, Florida Statutes (1991).
. A first degree felony punishable by life under section 810.02(2), Florida Statutes (1991).
. A third degree felony under section 784.021(l)(a), Florida Statutes (1991), punishable by a maximum of five years in prison under section 775.082, Florida Statutes (1991).
. A second degree felony under sections 794.011(3) and 777.04, Florida Statutes (1991).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Schneider v. State, 788 So. 2d 1073 (Fla. 2d DCA 2001)…, 513 So. 2d 664 (Fla.1987). Schneider also argues that points for victim injury were erroneously included on his scoresheet. However, this issue requires a factual inquiry and is not properly raised on a rule 3.800(a) motion. See Holland v. State, 672 So. 2d 566 (Fla. 5th DCA 1996). Finally, Schneider argues that, although the trial court granted him jail credit for counts I and III of case number 90-998, the trial court erred in failing to grant him jail credit for counts II and IV. However, a defendant i…
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ROY v. State, 711 So. 2d 1348 (Fla. 1st DCA 1998)…proper notice of intent to seek habitualized sentence is not cognizable in rule 3.800(a) motion). Appellant’s second claim, alleging an incorrect assessment of victim injury, is a factual matter not cognizable under rule 3.800(a). Holland v. State, 672 So. 2d 566, 567 (Fla. 5th DCA)(holding that appellant’s claim, that state failed to prove victim injury, is not cognizable in a rule 3.800(a) motion), [*1350] rev. denied, 678 So. 2d 338 (Fla.1996). I would affirm Appellant’s sentence.…
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Arzy Richardson v. State, 705 So. 2d 608 (Fla. 5th DCA 1997)…offense. We can afford Richardson no relief on this claim because this type of error (if it exists) is not apparent on the face of the scoresheet. Thus it is not cognizable through proceedings brought pursuant to rule 3.800(a). See Holland v. State, 672 So. 2d 566 (Fla. 5th DCA 1996). AFFIRMED. GOSHORN and ANTOON, JJ., concur. . § 782.04(2), Fla. Stat. (1993).…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. State, 661 So. 2d 1193 (Fla. 1995)
- State v. Callaway, 658 So. 2d 983 (Fla. 1995)
- Pace v. State, 662 So. 2d 1001 (Fla. 1st DCA 1995)
- Ford v. State, 667 So. 2d 455 (Fla. 4th DCA 1996)