FRED MCMILLION, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Fred McMillian appealed the denial of his Rule 3.850 motion for postconviction relief, claiming ineffective assistance of counsel regarding plea negotiations and sentencing scoresheet errors. The court affirmed the denial of the ineffective assistance claim regarding his plea but reversed and remanded regarding the scoresheet calculation error that overstated victim injury points.
The trial court correctly denied the ineffective assistance claim regarding the plea because McMillian failed to allege he would not have entered the plea if properly informed. However, the court erred in assessing 80 points for sexual penetration when the statute required 40 points for severe injury, and this error required remand for correction and resentencing.
[1] A claim of ineffective assistance of counsel based on a belief that probation would be received in exchange for a plea is legally insufficient if the defendant does not a…
[2] A defendant claiming ineffective assistance of counsel for failure to object to a sentencing scoresheet error must demonstrate prejudice.
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“If the conviction is for an offense involving sexual contact which includes sexual penetration, the sexual penetration must be scored as a severe injury regardless of whether there is evidence of any physical injury.”
Establishes the statutory definition of sexual penetration as a severe injury under Section 921.0011(7)
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcMillian entered a plea of nolo contendere to sexual battery. He claimed trial counsel led him to believe he would receive probation. The sentencing …
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PER CURIAM.
Appellant challenges the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.
Appellant claimed trial counsel rendered ineffective assistance by leading him to believe that he would receive probation in exchange for his plea of nolo contendere to the charge of sexual battery. The trial judge correctly determined that the motion was legally insufficient because appellant did not allege that he would not have entered the plea had he been properly informed. Richardson v. State, 677 So. 2d 43 (Fla. 1st DCA 1996).
Appellant also argued trial counsel rendered ineffective assistance by failing to object to an error on the sentencing seore-sheet. The seoresheet included 80 points under victim injury for sexual penetration. Appellant argued that only 40 points should have been added. We agree.
Section 921.0011(7), Fla. Stat. (1995), defining “victim injury,” provides:
If the conviction is for an offense involving sexual contact which includes sexual penetration, the sexual penetration must be scored as a severe injury regardless of whether there is evidence of any physical injury. If the conviction is for an offense involving sexual contact which does not include sexual penetration, the sexual contact must be scored as a moderate injury regardless of whether there is evidence of any physical injury. If the victim of an offense involving sexual contact suffers any physical injury as a direct result of the primary offense or any other offense committed by the offender resulting in conviction, .such physical injury must be scored separately and in addition to the points scored for the sexual contact or the sexual penetration.
Section 921.0014, Fla. Stat. (1995), which set forth the worksheet for offenses committed on or after October 1, 1995, provided the following levels of victim injury and corresponding points:
Severe 40
Sexual penetration 80
Moderate 18
Sexual contact 40
As observed in Romano v. State, 718 So. 2d 283 (Fla. 4th DCA 1998), “severe injury” corresponds to 40 points rather than the 80 points assessed under the applicable statutory provisions. Section 775.021(1), Fla. Stat. (1995), provides: “The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” This statutory provision has been construed as applying to the sentencing guidelines. Lewis v. State, 574 So. 2d 245 (Fla. 2d DCA 1991).
We remand to the trial court for correction of the scoresheet and resentencing. In all other respects, the order on appeal is affirmed.
BARFIELD, C.J., LAWRENCE and BROWNING, JJ., CONCUR.
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Citator
Cited By
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McMILLION v. State, 750 So. 2d 726 (Fla. 1st DCA 2000)…KAHN, J. Fred McMillion appeals an amended judgment and sentence entered on remand pursuant to this court’s opinion in McMillion v. State, 729 So. 2d 455 (Fla. 1st DCA 1999). McMillion argues for the first time on appeal that he did not receive the appropriate amount of credit for time he served in prison prior to resentencing even though, during the resentencing hearing, the trial court indicated th…
Authorities Cited
- Lewis v. State, 574 So. 2d 245 (Fla. 2d DCA 1991)
- Romano v. State, 718 So. 2d 283 (Fla. 4th DCA 1998)
- Richardson v. State, 677 So. 2d 43 (Fla. 1st DCA 1996)