THOMAS MORTIMER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas Mortimer appeals his sentence imposed under a plea agreement, arguing the guidelines scoresheet was miscalculated at Level 7 instead of Level 6. The court affirms the sentence because it was negotiated as part of a valid plea agreement and falls within the correct guidelines range, though it remands for correction of the scoresheet.
The sentence is not illegal because it was negotiated as part of a valid plea agreement for a specific term of 85 months and does not exceed the statutory maximum, even though the scoresheet was miscalculated. The parties negotiated for that specific sentence, not for the lowest permissible guidelines sentence.
[1] A sentence imposed pursuant to a plea agreement is not illegal if it does not exceed the statutory maximum, even if based on an incorrectly calculated scoresheet.
[2] A defendant who enters a plea agreement for a specific term of years is bound by that term if it does not exceed the statutory maximum, regardless of a scoresheet error.
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“It is well-settled that when a defendant enters a negotiated plea for a term of years, relying upon an incorrectly calculated scoresheet, such sentence is not illegal so long as it does not exceed the statutory maximum.”
Establishes the controlling legal standard that an incorrectly calculated scoresheet does not render a negotiated sentence illegal if it stays within statutory limits.
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Join FLexlaw to unlock all legal intelligenceMortimer was charged with sexual battery on a child and sexual activity with a child under eighteen. He entered a no-contest plea to the second count …
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PER CURIAM.
Thomas Mortimer appeals from a guidelines sentence imposed pursuant to a plea agreement. He contends that the trial court erred in sentencing him pursuant to an incorrectly calculated scoresheet. We affirm the sentence, notwithstanding the scoresheet error, because it was imposed pursuant to a plea agreement and was within the sentencing guidelines range.
Appellant was charged with sexual battery on a child (familial/custodial authority) (Count I) and sexual activity with a child under the age of eighteen (Count II). Appellant entered a plea of no contest to Count II, pursuant to a plea agreement providing that Count I would be dismissed and appellant sentenced to 85 months in prison, with credit for time served, followed by three years of probation. The trial court accepted appellant’s plea as freely and voluntarily made and sentenced appellant in accordance with the plea agreement.
Thereafter, appellant filed a 3.800 motion to correct his sentence. In that motion, appellant alleged, inter alia, that the guidelines scoresheet used to calculate his sentence was incorrect because it scored appellant’s offense at Level 7, rather than at Level 6. Properly scored, the minimum sentence appellant could have received was approximately 70 months instead of 85 months. Appellant contended that, because the parties to the plea negotiations intended that he be sentenced to the lowest permissible guidelines sentence, and because the sentence actually imposed was the product of a scoring error and not the lowest permissible sentence for which appellant had bargained, he should be resen-tenced pursuant to a corrected guidelines scoresheet.
The state responded, conceding that the offense should have been scored as a Level 6 offense but arguing that the sentence imposed was within the correct guidelines range and, therefore, a lawful sentence. The trial court denied appellant’s motion upon determining that appellant’s sentence of 85 months imprisonment is a permissible sentence under the express terms of the plea agreement and under the guidelines.
It is well-settled that when a defendant enters a negotiated plea for a term of years, relying upon an incorrectly calculated scoresheet, such sentence is not illegal so long as it does not exceed the statutory maximum. Ivy v. State, 754 So. 2d 776 (Fla. 4th DCA 2000); Gibson v. State, 619 So. 2d 31 (Fla. 4th DCA 1993) and cases cited therein; Kleppinger v. State, 760 So. 2d 1045 (Fla. 2d DCA 2000); Dunenas v. Moore, 762 So. 2d 1007 (Fla. 3d DCA 2000); Gainer v. State, 590 So. 2d 1001 (Fla. 1st DCA 1991);. Because appellant entered a plea of no contest to a negotiat ed plea bargain specifically providing for an 85 month period of incarceration, and that period does not exceed the statutory maximum, his sentence is not illegal.
Contrary to appellant’s assertions, the record does not clearly demonstrate that the trial judge and parties to the plea agreement intended that appellant be sentenced to the lowest permissible guidelines sentence. The record simply reflects that appellant negotiated for an 85 month sentence, which he received.
Accordingly, we affirm appellant’s sentence but remand for correction 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.
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Citator
Cited By (21 total)
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Williams v. State, 825 So. 2d 994 (Fla. 4th DCA 2002)…ration was error. [*996] However, when a defendant enters a negotiated plea for a term of years, relying upon an incorrectly calculated scoresheet, such sentence is not illegal so long as it does not exceed the statutory maximum.” Mortimer v. State, 770 So. 2d 743, 744 (Fla. 4th DCA 2000); accord Ivy v. State, 754 So. 2d 776, 776 (Fla. 4th DCA 2000); Gibson v. State, 619 So. 2d 31, 31-32 (Fla. 4th DCA 1993). Appellant’s sentence does not exceed the statutory maximum. Our affirmance is without prejudice to ap…
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Gregory Banks v. State, 887 So. 2d 1191 (Fla. 2004)…appellant is not entitled to relief under Heggs, the denial of the instant motion should be without prejudice to appellant’s seeking to withdraw his plea as involuntarily entered based on the unconstitutional 1995 guidelines. See Mortimer v. State, 770 So. 2d 743, 745 (Fla. 4th DCA 2000) (affirming summary denial of motion to correct sentence because it was not an illegal sentence, as it was within the 1994 sentencing guidelines range and was imposed pursuant to a plea agreement which did not clearly demonst…
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Rashan Jones v. State, 781 So. 2d 447 (Fla. 4th DCA 2001)…appellant is not entitled to relief under Heggs, the denial of the instant motion should be without prejudice to appellant’s seeking to withdraw his plea as involuntarily entered based on the unconstitutional 1995 guidelines. See Mortimer v. State, 770 So. 2d 743, 745 (Fla. 4th DCA 2000) (affirming summary denial of motion to correct sentence because it was not an illegal sentence, as it was within the 1994 sentencing guidelines range and was imposed pursuant to a plea agreement which did not clearly demonst…
Previewing 3 of 21 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Durwin D. Dunenas v. Moore, 762 So. 2d 1007 (Fla. 3d DCA 2000)
- Skidmore v. State, 688 So. 2d 1014 (Fla. 3d DCA 1997)
- Gainer v. State, 590 So. 2d 1001 (Fla. 1st DCA 1991)
- Jireh Kleppinger v. State, 760 So. 2d 1045 (Fla. 2d DCA 2000)
- Uvanni v. Dott G.C. Gallenga, M.D., 619 So. 2d 31 (Fla. 3d DCA 1993)
- IVY v. State, 754 So. 2d 776 (Fla. 4th DCA 2000)
- Dante Mortel McCRAY v. State, 754 So. 2d 776 (Fla. 3d DCA 2000)