DATORAL SMITH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Datoral Smith appealed his conviction for home invasion robbery and two counts of burglary with assault. The court reversed and remanded, finding that one conviction was subsumed by the other, one duplicate count should be vacated, and the defendant's plea agreement was based on a miscalculated sentencing scoresheet that would have entitled him to a significantly shorter sentence.
The conviction for home invasion robbery is vacated as subsumed by the greater offense of burglary with assault. One of the two counts of burglary with assault is vacated as a duplicative charge. The plea agreement is subject to withdrawal because it was based on a miscalculated scoresheet that materially misstated Smith's sentencing exposure. The defendant should be given the opportunity to withdraw his plea on remand.
[1] A conviction for home invasion robbery may be vacated as subsumed by the greater offense of burglary with an assault.
[2] A defendant cannot be improperly charged and convicted of multiple counts of burglary with an assault based on attacks on separate victims within the same home.
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Join FLexlaw to unlock all legal intelligence“The defendant contends, and the State properly concedes, that the conviction for count one, home invasion robbery should be vacated as it is subsumed by the greater offense of burglary with an assault.”
Establishes the subsumption principle that home invasion robbery cannot be charged alongside the greater included offense of burglary with assault.
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Join FLexlaw to unlock all legal intelligenceSmith was convicted of home invasion robbery and two counts of burglary with assault based on attacks on two separate victims within a home. At the ti…
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PER CURIAM.
The defendant contends, and the State properly concedes, that the conviction for count one, home invasion robbery should be vacated as it is subsumed by the greater offense of burglary with an assault. Bowers v. State, 679 So. 2d 340, 341 (Fla. 1st DCA 1996). The State also concedes that one of the two counts of burglary with an assault should be vacated. The defendant was improperly charged and convicted of two counts of burglary with an assault on the basis of attacks on two separate victims within the home. De Jesus v. State, 684 So. 2d 875, 876 (Fla. 3d DCA 1996). As to the defendant s third point on appeal, that Ms plea agreement is illegal as it was agreed to on the basis of a miscalculated scoresheet, the State concedes that the scoresheet was miscalculated. On defendant’s scoresheet, burglary with an assault was scored as a level nine, resulting in a mandatory sentence of nine to sixteen years. The State concedes that burglary with an assault should have been scored as a level eight which would have resulted in a mandatory sentence of less than three years to a maximum of four years and about nine months. The defendant agreed to a sentence of five years for each count running concurrently. The State concedes the error, but properly points out that burglary with an assault is punishable by up to life imprisonment. § 810.02(2)(a), Fla. Stat. (Supp.1996).
If a defendant claims that he would not have pled guilty if he had known what his correct scoresheet total had been, 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 Rule 3.850 motion to withdraw the plea in the trial court. Skidmore v. State, 688 So. 2d 1014, 1015 (Fla. 3d DCA 1997).
Under a Rule 3.850 motion, defendant’s plea based on the improperly calculated scoresheet may be considered involuntary. Hingson v. State, 553 So. 2d 768, 769 (Fla. 1st DCA 1989). As cited in Hingson, the Supreme Court has held that a defendant should be permitted to withdraw a guilty plea when the plea was based upon a misapprehension of facts. Hingson, 553 So. 2d at 769 (citing Forbert v. State, 437 So. 2d 1079 (Fla.1983)).
The record clearly reflects that the defendant agreed to a plea agreement that sentenced him to five years on each count to run concurrently when faced with a mandatory sentence of nine to sixteen years. We find it wholly credible that the defendant would not have agreed to such a plea when the maximum period of incarceration would have been two-and-a-half months short of five years. On remand, the defendant should be given the opportunity to withdraw his plea.
Accordingly, the trial court is instructed to vacate the conviction for home invasion robbery and one count of burglary with assault, correct the scoresheet to reflect that burglary with assault is a level 8, provide the defendant with the opportunity to withdraw his plea, and resentence the defendant in accordance therewith.
Reversed and remanded with directions.
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Gregory Banks v. State, 887 So. 2d 1191 (Fla. 2004)…case is analogous to cases where courts have held that a plea entered based on an incorrectly calculated guideline sentence could be the basis for a valid rule 3.850 challenge to the voluntary and intelligent nature of the plea. See Smith v. State, 741 So. 2d 579 (Fla. 3d DCA 1999); Skidmore v. State, 688 So. 2d 1014 (Fla. 3d DCA 1997); Hingson v. State, 553 So. 2d 768 (Fla. 1st DCA 1989); Gainer v. State, 590 So. 2d 1001 (Fla. 1st DCA 1991). In Hingson, the defendant pled to a term of years based upon an im…
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Braggs v. State, 789 So. 2d 1151 (Fla. 3d DCA 2001)…he latter is subsumed in the conviction for the former. As the state correctly concedes, the conviction for count three, home invasion robbery, “should be vacated as it is subsumed by the greater offense of burglary with an assault.” Smith v. State, 741 So. 2d 579, 579 (Fla. 3d DCA 1999); Mendez v. State, 26 Fla. L. Weekly D883, — So. 2d -, 2001 WL 314524(Fla. 5th DCA Mar. 30, 2001). On remand the court shall vacate this conviction and sentence. Braggs also argues that the court erred in entering the kidnapp…
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Tuttle v. State, 137 So. 3d 393 (Fla. 2d DCA 2014)…State in this appeal to argue otherwise either pre-date Pizzo, see, e.g., Mendez v. State, 798 So. 2d 749 (Fla. 5th DCA 2001); Braggs v. State, 789 So. 2d 1151 (Fla. 3d DCA 2001); Barboza v. State, 786 So. 2d 675 (Fla. 3d DCA 2001); Smith v. State, 741 So. 2d 579 (Fla. 3d DCA 1999); Bowers v. State, 679 So. 2d 340 (Fla. 1st DCA 1996), and hence no longer apply, or simply cite to pre-Pizzo authority with no analysis of whether that authority remained good law after Pizzo, see Washington v. State, 120 So. 3d 6…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Forbert v. State, 437 So. 2d 1079 (Fla. 1983)
- Skidmore v. State, 688 So. 2d 1014 (Fla. 3d DCA 1997)
- Bowers v. State, 679 So. 2d 340 (Fla. 1st DCA 1996)
- Cunningham v. AT & T Techs., 553 So. 2d 768 (Fla. 1st DCA 1989)
- de Jesus v. State, 684 So. 2d 875 (Fla. 3d DCA 1996)