ROBERT MCCLENDON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a trial judge cannot find harmless error regarding sentencing points without addressing the merits of the claim.
Appellant moved to correct his sentence, alleging 40 points were improperly added to his scoresheet, which would have placed him in a lower sentencing…
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PER CURIAM.
The appellant challenges an order whereby the trial judge denied the appellant’s Florida Rule of Criminal Procedure 3.800(a) motion. Because the trial judge erroneously determined that any error was harmless, we reverse.
In his motion, the appellant alleged that his scoresheet reflected 40 points for victim injury that under Karchesky v. State, 591 So. 2d 930 (Fla.1992), should not have been added. The appellant further alleged that the deduction of the 40 points would have placed him in a lower sentencing range. The trial judge did not address the merits of the claim. He reasoned that he need not do so because, even absent the 40 points, the appellant’s sentence would have fallen within the permitted range. But this is not a sufficient basis for a finding of harmlessness. See Burrows v. State, 649 So. 2d 902 (Fla. 1st DCA 1995).
The trial judge must therefore reconsider the claim. We note that the appellant will be entitled to relief on his claim only if it is apparent from the face of the record that the 40 points were improperly added. See State v. Callaway, 658 So. 2d 983, 988 (Fla.1995); see also Harper v. State, 632 So. 2d 104 (Fla. 1st DCA 1994).
The order is reversed and the case is remanded.
ALLEN, WEBSTER and LAWRENCE, JJ., concur.
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Melville Joseph Corp v. State, 698 So. 2d 1349 (Fla. 1st DCA 1997)…, 658 So. 2d 983 (Fla.1995). However, appellant alleges a scoresheet error, and we have recognized such a claim remains cognizable under rule 3.800(a), unless an evidentiary hearing is required to dispose of the claim. See, e.g., McClendon v. State, 679 So. 2d 1255 (Fla. 1st DCA 1996); Baldwin v. State, 679 So. 2d 1193 (Fla. 1st DCA 1996). So remains the well-established requirement that when denying a cognizable 3.800(a) claim, the trial court must attach portions of the record conclusively refuting that clai…
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Arlie Waldron v. State, 696 So. 2d 1318 (Fla. 1st DCA 1997)…pending, [*1319] the movant shall file in the appellate court, within ten days, a copy of the trial court’s order thereon. Accordingly, we reverse and remand for the trial court to appropriately consider appellant’s motion.1 See McClendon v. State, 679 So. 2d 1255 (Fla. 1st DCA 1996); Baldwin v. State, 679 So. 2d 1193 (Fla. 1st DCA 1996). REVERSED and REMANDED for consistent proceedings. WEBSTER, LAWRENCE and PADOVANO, JJ., concur. . We express no opinion about the merits of appellant’s motion.…
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State v. Wilford, 720 So. 2d 617 (Fla. 1st DCA 1998)…dard of review is whether the decision is supported by competent, substantial evidence. See Philip J. Padovano, Florida Appellate Practice § 9.6 (1997); Dwight v. State, 677 So. 2d 1363, 1364 (Fla. 1st DCA 1996). The State cites McClendon v. State, 679 So. 2d 1255 (Fla. 1st DCA 1996), to support its contention that the trial judge erroneously selected 40 points for sexual contact. In McClendon, the trial judge included 40 victim injury points in violation of Karchesky v. State, 591 So. 2d 930 (Fla.1992). The…
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
- State v. Callaway, 658 So. 2d 983 (Fla. 1995)
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Burrows v. State, 649 So. 2d 902 (Fla. 1st DCA 1995)
- Royce Glenn Harper v. State, 632 So. 2d 104 (Fla. 1st DCA 1994)