WALTER CARL HOLT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Holt appeals the denial of his motion to correct an illegal sentence, arguing his aggravated child abuse conviction was improperly scored at sentencing guideline level 8 instead of level 4. The court reversed, holding that under the applicable sentencing guidelines, the conviction should have been scored at level 4, consistent with prior precedent in Newberry v. State.
The conviction was improperly scored at level 8 and should have been scored at level 4. Under a corrected scoresheet, the lewd and lascivious act (level 7) would be the primary offense, resulting in a guideline range of 25.8 to 43 months rather than the 53.4 months imposed.
[1] A conviction for aggravated child abuse under sections 827.03(1)(b) and (c), Florida Statutes (1993), should be ranked as a level 4 offense, not a level 8 offense, for se…
[2] An error in the sentencing guidelines scoresheet that is apparent on the face of the record may be corrected pursuant to rule 3.800(a), Florida Rules of Criminal Procedur…
Previewing 2 of 3 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“The offenses contained in sections 827.03(l)(b) and (c) are unlisted second degree felonies which were ranked as level 4 offenses pursuant to § 921.0013(2), Fla.Stat. (1993).”
Establishes the correct guideline level for the offenses of which Holt was convicted, contradicting the trial court's level 8 classification.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHolt was convicted of aggravated child abuse under sections 827.03(l)(b) and (c) committed on July 7, 1995, and sentenced to probation. He subsequentl…
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SAWAYA, J.
Walter Carl Holt appeals the summary denial of his motion to correct sentence filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. Holt was convicted of aggravated child abuse, which offense was committed on July 7, 1995. Specifically, Holt was convicted of violating sections 827.03(l)(b) and (c), Florida Statutes (1993) and was sentenced to a term of probation. Holt subsequently violated his probation and was sentenced pursuant to the guidelines to 53.4 months’ incarceration.
Holt raises an error in the guidelines scoresheet which is apparent on the face of the record. The aggravated child abuse conviction was scored as the primary offense on the guidelines scoresheet and was classified as a level 8 offense. Under the sentencing guidelines in effect at the time of Holt’s offense, the only form of aggravated child abuse listed in level 8 of the offense severity ranking chart was section 827.03(l)(a). See § 921.0012, Fla.Stat. (1994 Supp.) (level 8). The offenses contained in sections 827.03(l)(b) and (c) are unlisted second degree felonies which were ranked as level 4 offenses pursuant to § 921.0013(2), Fla.Stat. (1993). Holt claims that if his conviction for aggravated child abuse had been ranked as a level 4 offense, it would have been scored as an additional offense, since he was also sentenced at the same time for his conviction for lewd and lascivious act. The latter offense was ranked at level 7 and would be scored as the primary offense on a corrected scoresheet.' Holt asserts that under a corrected scoresheet, his guideline range would be 25.8 to 43 months’ incarceration.
In denying the rule 3.800(a) motion, the trial court held that the primary offense of aggravated child abuse was properly scored at level 8. However, in Newberry v. State, 677 So. 2d 884 (Fla. 5th DCA 1996), this court vacated a sentence imposed for aggravated child abuse because the conviction was erroneously scored as a level 8 offense when it should have been scored as a level 4 offense. Like Holt, the defendant in Newberry had been convicted of aggravated child abuse under sections 827.03(l)(b) and (c), Florida Statutes (1993). See also Jenkins v. State, 661 So. 2d 411 (Fla. 4th DCA 1995).1
Based on Newberry, the order denying the rule 3.800(a) motion is reversed, and the case is remanded for further proceedings consistent with this opinion.
REVERSED and REMANDED.
COBB and SHARP, W., JJ., concur. . Section 921.0012, Florida Statutes, was amended after the commission of Holt’s offense to include a broader definition of aggravated child abuse under level 8. See § 921.0012(3)(h), Fla.Stat. (1995) (applicable to offenses committed on or after October 1, 1995); Rouse v. State, 720 So. 2d 584 (Fla. 4th DCA 1998).
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Citator
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Gill v. State, 829 So. 2d 299 (Fla. 2d DCA 2002)…e 3.800(a) “where the error can be corrected based on the face of the record and the movant so alleges.” McCullough v. State, 805 So. 2d 86, 87 (Fla. 2d DCA 2002). Gill’s particular claims are cognizable in a rule 3.800(a) motion. See Holt v. State, 781 So. 2d 498 (Fla. 5th DCA 2001). [*300] In its order, the trial court recognized that grounds two and three of Gill’s motion raised rule 3.800(a) claims that the sentence was illegal but refused to consider them because Gill’s motion was filed pursuant to rule…
Authorities Cited
- Jenkins v. State, 661 So. 2d 411 (Fla. 4th DCA 1995)
- Putnam v. Ward, 677 So. 2d 884 (Fla. 3d DCA 1996)
- Newberry v. State, 677 So. 2d 884 (Fla. 5th DCA 1996)
- Turane Rouse v. State, 720 So. 2d 584 (Fla. 4th DCA 1998)