DAVID WESLEY ROY
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.
The court held that the appellant's claims regarding deprivation of due process and incorrect victim injury assessment were not cognizable under Florida Rule of Criminal Procedure 3.800(a).
Appellant filed a motion under rule 3.800(a) seeking correction of a scoresheet and resentencing after a prior conviction was vacated. The trial court…
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 Florida Rule Of Criminal Procedure 3.800(A) Construction cases and more on FLexlaw
PER CURIAM.
On this appeal from an order ruling on a motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), we reverse and remand with directions to hold a new sentencing hearing, at which appellant has the right to be present.
The trial court granted appellant’s 3.800(a) motion in part, finding that his scoresheet was incorrect, and that he was entitled to a reduction of points based upon a vacated conviction and a conviction for a lesser included offense. This resulted in a reduced sentencing range, which required resentencing with a corrected scoresheet. The court, however, immediately resentenced appellant without holding a sentencing hearing, which was error. See Burrows v. State, 649 So. 2d 902 (Fla. 1st DCA 1995); Shabazz v. State, 674 So. 2d 920 (Fla. 4th DCA 1996). And see Phillips v. State, 705 So. 2d 1320 (Fla.1997) (resentencing is an entirely new proceeding and trial court is under no obligation to make the same findings).
REVERSED and REMANDED for resentencing.
ERVIN and PADOVANO, JJ., concur. BOOTH, J., dissents with opinion.
BOOTH, Judge,
dissenting.
I respectfully dissent. Appellant previously filed a direct appeal in this ease after a jury found him guilty of attempted first-degree murder, carjacking with the use of a firearm, burglary of a conveyance, and use of a firearm during the commission of a felony.
This court reversed the last conviction and remanded the case with directions that the trial court vacate that conviction. Roy v. State, 693 So. 2d 63, 64 (Fla. 1st DCA 1997).
The trial court thereafter vacated and set aside the pertinent conviction and Appellant’s sentence for that offense. Appellant then filed a motion under Florida Rule of Criminal Procedure 3.800(a) for a corrected scoresheet citing facial errors, and for an alleged error in the victim injury assessment. Appellant also requested a resentencing hearing.
The trial court granted the motion for correction of facial scoresheet errors, but denied Appellant’s claim regarding victim injury assessment, without holding a hearing.
Appellant now appeals from the denial of his rule 3.800(a) motion. He argues that the trial court erred (1) in failing to hold a new sentencing hearing thereby depriving him of his right to be heard, and (2) in assessing the victim’s gunshot wound as severe. Appellant does not argue here that the trial court’s corrected scoresheet results in an illegal sentence or that it contains a facial error.
Rule 3.800(a) provides that a “court may at any time correct an illegal sentence imposed by it or an incorrect calculation made by it in a sentencing guideline scoresheet.” In Horton v. State, 696 So. 2d 460 (Fla. 1st DCA 1997), this court held that rule 3.800(a) affords relief only in the case of sentences that exceed the statutory maximum, and where there are scoresheet errors apparent on the face of the record.
Neither of Appellant’s claims in the instant appeal are cognizable under rule 3.800(a).
The first claim, alleging deprivation of due process, is not properly addressed under rule 3.800(a).
Judge v. State, 596 So. 2d 73, 77 (Fla. 2d DCA 1991)(holding that rule 3.800(a) motion cannot be employed to reexamine whether procedures followed in imposing sentence comport with statutory law and due process), rev. denied, 613 So. 2d 5 (Fla.1992); see Denson v. State, 656 So. 2d 530 (Fla. 5th DCA 1995)(Sharp, J., concurring in unanimous decision with a separate opinion explaining that failure of state to provide 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), rev. denied, 678 So. 2d 338 (Fla.1996).
I would affirm Appellant’s sentence.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Leronnie Lee Walton v. State, 106 So. 3d 522 (Fla. 1st DCA 2013)…. See Rivers v. State, 980 So. 2d 599, 600-01 (Fla. 2d DCA 2008). Violation of this fundamental right is reversible error. See Blair v. State, 25 So. 3d 46, 48 (Fla. 5th DCA 2009); Orta v. State, 919 So. 2d 602, 604 (Fla. 3d DCA 2006); Roy v. State, 711 So. 2d 1348, 1349 (Fla. 1st DCA 1998). However, a court may resentence a defendant in his or her absence in two circumstances. First, a defendant may waive the right to be present. See Brown [*529] v. State, 929 So. 2d 675, 677 (Fla. 5th DCA 2006); Smith v. St…
-
Orta v. State, 919 So. 2d 602 (Fla. 3d DCA 2006)…7 So. 2d 584 (Fla. 4th DCA 1997)(correcting a discrepancy between the oral pronouncement and the written sentence). After reviewing the Record, we conclude that resentencing in the instant case does not involve a “ministerial act.” In Roy v. State, 711 So. 2d 1348 (Fla. 1st DCA 1998), the First District remanded the defendant’s case for resentencing based upon an incorrect scoresheet which, when correctly recalculated, resulted in a reduced sentencing range. The Court specifically found that the defendant’s p…
-
Bines v. State, 837 So. 2d 1146 (Fla. 1st DCA 2003)…A 2002). He appeals the resentencing because, he alleges, he was neither present nor represented by counsel at the resen-tencing. His claim has merit. A defendant has a right to be present at resentencing from a rule 3.800(a) motion. Roy v. State, 711 So. 2d 1348 (Fla. 1st DCA 1998). A defendant also has the right to be represented by counsel at resentencing under a meritorious rale 3.800(a) motion. McDonald v. State, 679 So. 2d 1273 (Fla. 1st DCA 1996). Here, Appellant alleges that he was denied these right…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991)
- Phillips v. State, 705 So. 2d 1320 (Fla. 1997)
- Burrows v. State, 649 So. 2d 902 (Fla. 1st DCA 1995)
- Holland v. State, 672 So. 2d 566 (Fla. 5th DCA 1996)
- Horton v. State, 696 So. 2d 460 (Fla. 1st DCA 1997)
- Abdullah Shabazz v. State, 674 So. 2d 920 (Fla. 4th DCA 1996)
- ROY v. State, 693 So. 2d 63 (Fla. 1st DCA 1997)
- Bret S. Beiler v. State, 656 So. 2d 530 (Fla. 2d DCA 1995)