JESSE M. MONTAGUE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Jesse Montague appeals the denial of his postconviction relief motion alleging ineffective assistance of counsel. The court found that his attorney failed to challenge 120 points scored for victim injury in his sentencing guideline calculation, which points were prohibited under controlling case law, and therefore reversed in part and remanded for further proceedings.
Yes. Montague's claim of ineffective assistance of counsel is facially sufficient, and the trial court's order denying postconviction relief failed to refute the claim. The court reversed the denial of the motion for postconviction relief as to this issue and remanded for the trial court to determine what constitutes victim injury under the circumstances.
[1] A claim of ineffective assistance of counsel is facially sufficient if it alleges that counsel allowed points to be scored for victim injury without reviewing the scoresh…
[2] A defendant may be entitled to postconviction relief if counsel allowed points to be scored for victim injury without reviewing the scoresheet, and the removal of those p…
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“Montague, who was convicted of three counts of sexual activity with a child by a person in familial authority, alleges his attorney provided ineffective assistance of counsel when he allowed, without reviewing the seoresheet, 120 points to be scored for victim injury, although no actual physical trauma was inflicted on the victim.”
Establishes the core factual allegation of ineffective assistance regarding the unchallenged victim injury points
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMontague was convicted of three counts of sexual activity with a child by a person in familial authority. At sentencing, 120 points were scored for vi…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Familial Authority cases and more on FLexlaw
PER CURIAM.
Jesse M. Montague appeals the denial of his motion for posteonvietion relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Montague’s motion sets forth several grounds for relief, only one of which merits discussion. Montague, who was convicted of three counts of sexual activity with a child by a person in familial authority, alleges his attorney provided ineffective assistance of counsel when he allowed, without reviewing the seoresheet, 120 points to be scored for victim injury, although no actual physical trauma was inflicted on the victim. Montague committed his crimes prior to the effective date of section 921.001(8), Florida Statutes (Supp.1992), so that, if the allegation prove true, these points would be prohibited under the holding in Karchesky v. State, 591 So. 2d 930 (Fla.1992). Without these points, Montague’s guideline range drops three cells from 17-22 years to 7-9 years in the recommended range.
Montague’s claim of ineffective assistance of counsel is facially sufficient and the court’s order fails to refute his claim. Accordingly, we reverse the order denying Montague’s motion for posteonvietion relief as to this issue only. We refer the trial court to the case of Fenelon v. State, 629 So. 2d 955 (Fla. 4th DCA 1993), to assist in the determination of what constitutes victim injury under the circumstances of this case. See State v. Montague, 682 So. 2d 1085 (Fla.1996). On remand, the trial court may either hold an evidentiary hearing to address Montague’s claim or attach portions of the record that refute the claim. In all other respects the order denying the motion for postconviction relief is affirmed.
Affirmed in part, reversed in part, and remanded.
DANAHY, A.C.J., and QUINCE and NORTHCUTT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Howard v. State, 724 So. 2d 599 (Fla. 2d DCA 1998)…ial of two counts of handling or fondling a child in lewd and lascivious manner. Howard does not allege that counsel was ineffective for [*600] failing to object to the inclusion of the victim injury points as did the defendant in Montague v. State, 702 So. 2d 237 (Fla. 2d DCA 1997). This claim is not, therefore, a rule 3.850 claim. We treat the claim, however, as if it had been properly raised pursuant to Florida Rule of Criminal Procedure 3.800. See Coleman v. State, 677 So. 2d 11 (Fla. 2d DCA 1996); Goutie…
-
Awad v. State, 778 So. 2d 1035 (Fla. 4th DCA 2001)…r knew or should have known that the prior record was incorrect. See Johnson v. State, 736 So. 2d 40 (Fla. 1st DCA 1999). Because we believe that defense counsel has an obligation to request and review a sentencing scoresheet, see Montague v. State, 702 So. 2d 237 (Fla. 2d DCA 1997) (holding appellant’s postcon-viction claim of ineffective assistance, based on trial counsel’s alleged failure to review victim injury points on sentencing scoresheet, was facially sufficient w'here movant alleged his sentence wou…
Authorities Cited
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- State v. Montague, 682 So. 2d 1085 (Fla. 1996)
- Emilus Fenelon v. State, 629 So. 2d 955 (Fla. 4th DCA 1993)