GRADY R. BRYE, SR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Brye sought post-conviction relief challenging his sentence, claiming prior uncounseled convictions were improperly included in his sentencing guidelines calculation. The court affirmed the denial of his illegal sentence claim but reversed the summary denial of his ineffective assistance of counsel claim, remanding for further proceedings.
The court affirmed that claims about illegal sentencing based on uncounseled convictions cannot be raised for the first time in a post-conviction motion. However, the court reversed summary denial of the ineffective assistance of counsel claim because appellant's allegations presented a prima facie showing of entitlement to relief sufficient to require more than summary denial.
[1] A claim that uncounseled convictions were improperly scored in the calculation of a guidelines sentence may not be raised for the first time in a motion for post-convicti…
[2] A prima facie showing of ineffective assistance of counsel is established when a defendant alleges that counsel knew or should have known about unscoreable convictions, f…
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Join FLexlaw to unlock all legal intelligence“This claim may not be raised for the first time by a motion for post-conviction relief.”
Establishes that challenges to the propriety of including uncounseled convictions in sentencing guidelines cannot be first raised in post-conviction proceedings.
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Join FLexlaw to unlock all legal intelligenceAppellant Brye's sentence was calculated using guidelines that included certain prior uncounseled convictions. Brye filed a motion for post-conviction…
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MICKLE, Judge.
Appellant seeks review of the trial court’s order denying his motion for post-conviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of appellant’s claim that his sentence is illegal in that certain uncounseled convictions were improperly scored in the calculation of his guidelines, sentence. This claim may not be raised for the first time by a motion for post-conviction relief. See State v. Lindsey, 660 So. 2d 406 (Fla. 5th DCA 1990); Stewart v. State, 511 So. 2d 375 (Fla. 1st DCA 1987); Lomont v. State, 506 So. 2d 1141 (Fla. 2d DCA 1987).
However, we must reverse the summary denial of appellant’s alternative claim for relief that trial counsel rendered ineffective assistance in that (1) counsel knew or should have known that the prior uncoun-seled convictions were unscoreable; (2) counsel failed to bring this to the sentencing court’s attention; and (3) inclusion of these offenses on the guidelines scoresheet affected the recommended sentence. We find that appellant’s allegations presented a prima fa-cie showing of entitlement to relief, enough to require something more than summary denial thereof. See Manuel v. State, 629 So. 2d 1052 (Fla. 2d DCA 1993); Register v. State, 619 So. 2d 498 (Fla. 2d DCA 1993); Pettway v. State, 502 So. 2d 1353 (Fla. 2d DCA 1987); Lanier v. State, 478 So. 2d 1184 (Fla. 2d DCA 1985). We remand to the trial court with directions to either afford appellant a hearing on his claim of ineffective assistance of counsel or to attach those portions of the record sufficient to refute the claim.
AFFIRMED in part; REVERSED in part; REMANDED with directions.
ALLEN and LAWRENCE, JJ., concur.
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Montoya v. State, 943 So. 2d 253 (Fla. 3d DCA 2006)…nclusion of several misdemeanor convictions in computation of his sentencing guidelines range was error, as his convictions in those cases were as a result of uncounseled pleas. We agree. See State v. Beach, 592 So. 2d 237 (Fla.1992); Brye v. State, 677 So. 2d 1357 (Fla. 1st DCA 1996) (finding that defendant presented a prima facie showing of entitlement to relief on the ground of ineffective assistance of counsel by alleging that counsel knew or should have known that prior uncounseled convictions were unscor…
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Farmer v. State, 709 So. 2d 592 (Fla. 1st DCA 1998)…appellant was “charged” with armed burglary. Appellant presented a prima facie claim for relief which none of the documents in the appellate record conclusively refutes and therefore we reverse. See Fla. R.App. P. 9.140(i); see also Brye v. State, 677 So. 2d 1357 (Fla. 1st DCA 1996). As appellant correctly points out, these types of documents are merely hearsay. See, e.g., Hamilton v. State, 658 So. 2d 1233 (Fla. 1st DCA 1995); L’Homme v. State, 518 So. 2d 408 (Fla. 1st DCA 1988) (if the truthfulness of a pr…
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Johnson v. State, 736 So. 2d 40 (Fla. 1st DCA 1999)…pellant failed to allege that his attorney either knew or should have known that the prior record was incorrect, appellant has failed to state a facially sufficient claim’ See, e.g., Miller v. State, 725 So. 2d 414 (Fla. 2d DCA 1999); Brye v. State, 677 So. 2d 1357 (Fla. 1st DCA 1996); Manuel v. State, 629 So. 2d 1052 (Fla. 2d DCA 1993); Lanier v. State, 478 So. 2d 1184 (Fla. 2d DCA 1985). Accordingly, we affirm. However, we do so without prejudice to appellant’s right to file in the trial court a timely, lega…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lomont v. State, 506 So. 2d 1141 (Fla. 2d DCA 1987)
- R.C. Stewart v. State, 511 So. 2d 375 (Fla. 1st DCA 1987)
- Lanier v. State, 478 So. 2d 1184 (Fla. 2d DCA 1985)
- Stevens v. State, 502 So. 2d 1353 (Fla. 2d DCA 1987)
- Manuel v. State, 629 So. 2d 1052 (Fla. 2d DCA 1993)
- Register v. State, 619 So. 2d 498 (Fla. 2d DCA 1993)
- Pearson v. State, 660 So. 2d 406 (Fla. 1st DCA 1995)
- Hall v. State, 660 So. 2d 406 (Fla. 1st DCA 1995)