ALONZO MCCULLOUGH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Alonzo McCullough appeals the summary denial of his motion to correct an allegedly illegal sentence, claiming his sentencing scoresheet improperly classified a prior conviction as a second-degree felony rather than a third-degree felony. The District Court of Appeal reversed and remanded, holding that McCullough's claim was facially sufficient and distinguishable from prior precedent because he affirmatively alleged the error could be corrected based on record evidence.
McCullough's claim is distinguishable from prior precedent and facially sufficient because he affirmatively alleged that the error could be corrected based on record evidence contained in the presentence investigation report. The determination of whether a prior conviction was improperly scored is the type of matter that can be resolved by reviewing the written record and is therefore cognizable under Rule 3.800(a).
[1] A motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a) is cognizable when the movant affirmatively alleges that the error can be determ…
[2] A trial court cannot summarily deny a motion to correct an illegal sentence based solely on the inability to determine the alleged error from the record without addressin…
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Join FLexlaw to unlock all legal intelligence“only scoresheet errors which can be decided from the face of the record without an evidentiary hearing may be corrected pursuant to rule 3.800(a)”
States the general rule for what errors are cognizable under Rule 3.800(a), from the Lomont case
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Join FLexlaw to unlock all legal intelligenceMcCullough was sentenced based on a scoresheet that classified one of his prior convictions as a second-degree felony. McCullough contended that this …
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PER CURIAM.
Alonzo McCullough appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). McCullough alleged that his scoresheet was improperly calculated because one of his prior convictions was erroneously scored as a second-degree felony rather than a third-degree felony. If McCullough is correct, his recommended sentence would change from life to a range of twenty-seven to forty years. McCullough further alleged that the error can be determined from a review of his presentence investigation report contained in the court record.
The trial court denied the motion finding that the claim was not cognizable in a rule 3.800(a) proceeding because the determination could not be made based on the record alone. See Lomont v. State, 506 So. 2d 1141 (Fla. 2d DCA 1987) (holding that only scoresheet errors which can be decided from the face of the record without an evidentiary hearing may be corrected pursuant to rule 3.800(a)). The trial court did not, however, address or in any way refute McCullough’s claim that the error could be corrected based on the pre-sentence investigation report contained in the record, nor did the court specifically find that there was no record evidence either supporting or refuting McCullough’s contention regarding his prior conviction.
We find McCullough’s claim to be distinguishable from the one made in Lomont and facially sufficient because McCullough affirmatively alleged that the error could be corrected based on record evidence. See, e.g., State v. Mancino, 714 So. 2d 429 (Fla.1998) (holding that credit time issues are cognizable in a rule 3.800(a) motion when it is affirmatively alleged that the court records demonstrate on their face an entitlement to relief); Atwood v. State, 765 So. 2d 242 (Fla. 1st DCA 2000) (reversing summary denial of rule 3.800(a) motion alleging improper scoring of prior record for review of entire court record to determine if error could be resolved from the record); Lewis v. State, 719 So. 2d 924 (Fla. 1st DCA 1998) (reversing summary denial of rule 3.800(a) motion which alleged improper scoring of prior record for review of arrest report and presentence investigation report to determine if error could be corrected on face of record as alleged by movant).
We would also note that insofar as the State would have needed some record basis on which to accurately score McCullough’s prior record, this should be the kind of error that can be resolved from a review of the written record. See Atwood, 765 So. 2d at 243 (noting that determination of whether defendant’s prior convictions were improperly scored because they were more than ten years old appears to be the kind of matter that can be resolved by reviewing entire written record).
We, therefore, reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
BLUE, A.C.J., and STRINGER, J., and CAMPBELL, MONTEREY, (Senior) Judge, concur.
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Clellan Tyson v. State, 852 So. 2d 428 (Fla. 2d DCA 2003)…efendant’s motion asserting claim that prior felonies of which he was not convicted were improperly included in guidelines scoresheet computation because “the error complained of would require an evidentiary determination”); cf. McCullough v. State, 777 So. 2d 1091, 1091 (Fla. 2d DCA 2001) (holding that rule 3.800(a) motion alleging improperly calculated scoresheet was cognizable because motion “alleged that the error [could] be determined from a review of [the] presentence investigation report contained in th…
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McCLAIN v. State, 157 So. 3d 528 (Fla. 1st DCA 2015)…“was facially insufficient because it did not ‘affirmatively allege[] that the court records [in the instant proceeding] demonstrate on their face an entitlement to th[e] relief sought.”) (quoting Fla. R. Crim. P. 3.800(a)); cf. McCullough v. State, 777 So. 2d 1091, 1091-92 (Fla. 2d DCA 2001) (holding that Rule 3.800(a) motion was facially sufficient because the motion “alleged that the error could be corrected based on record evidence”). Appellant’s exclusive reliance on record excerpts from a different crimi…
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Russell v. State, 782 So. 2d 992 (Fla. 4th DCA 2001)…42 (Fla. 1st DCA 2000)(scoresheel error can be corrected under rule 3.800(a), even though the error does not appear on the face of the scoresheet, if the error can be demonstrated by the "record available in the circuit court”). McCullough v. State, 777 So. 2d 1091 (Fla. 2d DCA 2001)(following Atwood).…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Mancino, 714 So. 2d 429 (Fla. 1998)
- Lomont v. State, 506 So. 2d 1141 (Fla. 2d DCA 1987)
- Forrest Atwood v. State, 765 So. 2d 242 (Fla. 1st DCA 2000)
- Lewis v. State, 719 So. 2d 924 (Fla. 1st DCA 1998)