DANIEL JOSEPH SKIDMORE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Daniel Skidmore appealed the summary denial of his Rule 3.850 motion challenging his 30-year sentence imposed after a nolo contendere plea. The court affirmed, holding that because the plea was part of a valid negotiated plea bargain, the sentence was not illegal even though the scoresheet was miscalculated, and the claim was untimely under the finality rules.
The court held that the sentence was not illegal because it was imposed as part of a valid negotiated plea bargain and did not exceed the statutory maximum. An illegally calculated scoresheet does not render a negotiated plea sentence illegal if the sentence itself complies with statutory limits. Any challenge to the voluntariness of the plea based on scoresheet error must be brought by a timely Rule 3.850 motion to withdraw the plea, not by attacking the sentence itself.
[1] Most claims raised in a motion to vacate a sentence are time-barred when the defendant entered a nolo contendere plea as part of a negotiated plea bargain and the convict…
[2] An illegal sentence may be corrected at any time pursuant to rule 3.850 or rule 3.800(a).
Previewing 2 of 5 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“Where a defendant enters into a negotiated plea for a term of years that exceeds the guidelines range and has relied upon an incorrectly calculated scoresheet during negotiations, the sentence is not illegal for the purposes of a 3.800 motion as long as it does not exceed the statutory maximum.”
Establishes the core holding that negotiated plea sentences are not rendered illegal by scoresheet errors if they remain within statutory limits.
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Join FLexlaw to unlock all legal intelligenceIn 1986, Skidmore entered a nolo contendere plea to multiple serious felonies including burglary, robbery, aggravated battery, and kidnapping as part …
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BARKDULL, Senior Judge.
The defendant appeals the summary denial of his 3.850 motion. Because he entered a plea of nolo contendere as part of a negotiated plea bargain1 in 1986 and his convictions became final in 1989, most of his claims are time barred. See Gust v. State, 535 So. 2d 642 (Fla. 1st DCA 1988). However, he asserts that his thirty year sentence is illegal because his scoresheet was incorrectly calculated and because the three year minimum mandatory portion of his sentence was imposed at a subsequent hearing. An illegal sentence can be corrected at any time pursuant to either rule 3.850 or rule 3.800(a), so these claims merit a brief discussion.
Where a defendant enters into a negotiated plea for a term of years that exceeds the guidelines range and has relied upon an incorrectly calculated scoresheet during negotiations, the sentence is not illegal for the purposes of a 3.800 motion as long as it does not exceed the statutory maximum. McGuire v. State, 654 So. 2d 1305 (Fla. 5th DCA 1995); Kelly v. State, 599 So. 2d 727 (Fla. 1st DCA 1992); Gainer v. State, 590 So. 2d 1001 (Fla. 1st DCA 1991).
This is because a plea bargain is a valid reason for a departure sentence. Jauregui v. State, 652 So. 2d 898 (Fla. 3d DCA 1995).
The sentence of thirty years in this case does not exceed the statutory maximum for the first degree felonies to which the defendant pled nolo contendere, so the sentence is not illegal. If a defendant claims that he would not have pled guilty or nolo if he had known what his correct scoresheet total had been, as the defendant contends here, then that is an attack on the voluntary and intelligent character of'the plea which is a claim that must be brought by a timely 3.850 motion to withdraw the plea in the trial court. Brown v. State, 661 So. 2d 95 (Fla. 4th DCA 1995), review denied, 668 So. 2d 602 (Fla.1996); Barnes v. State, 643 So. 2d 83 (Fla. 3d DCA 1994); Gainer v. State, 590 So. 2d 1001 (Fla. 1st DCA 1991); Simmons v. State, 579 So. 2d 874 (Fla. 1st DCA 1991).
As stated above, this 3.850 is untimely. But even if the defendant had brought a timely motion and was successful in withdrawing his plea, the state would be permitted to reinstate all of the original charges and take him to trial. Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981).
Furthermore, the double jeopardy claims may not be raised by a 3.800 motion, see Hopping v. State, 674 So. 2d 905 (Fla. 1st DCA 1996); White v. State, 644 So. 2d 174 (Fla. 3d DCA 1994), as they are cut off by the entry of the plea. Salazar v. State, 675 So. 2d 654 (Fla. 3d DCA 1996). Finding no error, we affirm.
Affirmed.
. The defendant was charged with burglary of a structure, robbery, two counts of aggravated bat-teiy, unlawful possession of a firearm while engaged in a criminal offense, kidnapping and bur- glaiy of a conveyance. The trial judge informed the defendant during the plea colloquy that he could receive several life sentences if convicted.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (28 total)
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Durwin D. Dunenas v. Moore, 762 So. 2d 1007 (Fla. 3d DCA 2000)…reement is not conditioned upon the imposition of a sentence within a specific guideline range, improper scoring of the defendant’s scoresheet will not render the plea illegal unless the sentence exceeds the statutory maximum. See Skidmore v. State, 688 So. 2d 1014 (Fla. 3d DCA 1997). See also, Russell v. State, 656 So. 2d 203 (Fla. 5th DCA 1995)(score-sheet error harmless when based on plea bargain); Gentile v. State, 673 So. 2d 76 (Fla. 5th DCA 1996)(if negotiated plea is not conditioned upon a specific guid…
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Bover v. State, 732 So. 2d 1187 (Fla. 3d DCA 1999)…cated and taking the defendant to trial on all original charges, or agreeing that only the excessive sentence should be vacated, while making the judgment stand and allowing the defendant to be resentenced.... Id. at 56; see also Skidmore v. State, 688 So. 2d 1014, 1015 (Fla. 3d DCA 1997); Hayes v. State, 598 So. 2d 135, 137 (Fla. 5th DCA 1992); State v. Spella, 567 So. 2d 1051, 1052 (Fla. 5th DCA 1990); State v. Viele, 559 So. 2d 1304, 1305 (Fla. 4th DCA 1990).…
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Mortimer v. State, 770 So. 2d 743 (Fla. 4th DCA 2000)…ection of the scoresheet to reflect a Level 6 offense. Our affirmance of appellant’s sentence is without prejudice to appellant’s challenge to the voluntary and intelligent character of his plea by post-conviction proceedings. See Skidmore v. State, 688 So. 2d 1014 (Fla. 3d DCA 1997). AFFIRMED in part, and REMANDED. POLEN, STEVENSON and TAYLOR, JJ., concur.…
Previewing 3 of 28 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Jolly v. State, 392 So. 2d 54 (Fla. 5th DCA 1981)
- Gust v. State, 535 So. 2d 642 (Fla. 1st DCA 1988)
- Gainer v. State, 590 So. 2d 1001 (Fla. 1st DCA 1991)
- Salazar v. State, 675 So. 2d 654 (Fla. 3d DCA 1996)
- Simmons v. State, 579 So. 2d 874 (Fla. 1st DCA 1991)
- Kelly v. State, 599 So. 2d 727 (Fla. 1st DCA 1992)
- State v. Harris, 661 So. 2d 95 (Fla. 4th DCA 1995)
- Brown v. State, 661 So. 2d 95 (Fla. 4th DCA 1995)
- White v. State, 644 So. 2d 174 (Fla. 3d DCA 1994)
- Jauregui v. State, 652 So. 2d 898 (Fla. 3d DCA 1995)