MARK WALTON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court affirmed the denial of the motion to clarify sentence but recognized the defendant's right to be present at re-sentencing.
Defendant, after violating probation and being sentenced, filed a motion to correct an illegal sentence. He then filed a motion to clarify the sentenc…
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PER CURIAM.
Defendant appeals the denial of a motion to clarify sentence. We affirm.
Defendant was originally sentenced to probation. Thereafter, he violated his pro bation and was sentenced to seventy-five months in prison. The sentencing score-sheet was calculated under the 1995 guidelines and indicated a range of 59.7 to 99.5 months.
Defendant subsequently filed a 3.800 motion to correct illegal sentence pursuant to Heggs v. State, 759 So. 2d 620 (Fla.2000). The motion was granted by order stating that any change in sentence would be provided to the Department of Corrections.
In response to this order, defendant filed the present motion to clarify. The motion complained that the order was ambiguous and asserted that defendant wanted to be present for sentencing. The motion was denied.
The state concedes that prior to service of the motion to clarify the trial court had executed a new sentencing guidelines scoresheet under the 1994 version on the same date that the 3.800 motion was granted. The new scoresheet resulted in a range of 32.4 to 54 months in prison. The scoresheet and the docket sheet reflect a new sentence of 48 months. No new sentencing order appears in the record.
The present appeal challenges the denial of defendant’s motion to clarify. There is no merit to this appeal. However, defendant’s underlying argument that he was entitled to be present when he was re-sentenced is valid. See Barcelo v. State, 774 So. 2d 895 (Fla. 4th DCA 2001)'. Accordingly, we affirm the trial court’s order denying defendant’s motion to clarify without prejudice to file a motion to vacate his current sentence and seek re-sentencing at which he will be present and represented by counsel.
Affirmed.
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Cited By
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Walton v. State, 808 So. 2d 1292 (Fla. 3d DCA 2002)…PER CURIAM. In our original opinion, Walton v. State, 783 So. 2d 359 (Fla. 3d DCA 2001), we affirmed what we erroneously believed to be the lower court’s denial of a motion to clarify. Because of defendant’s chaotic filing of multiple pleadings both here and in the trial court, this Court inadvertently issued mandate…
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Yoany Barcelo v. State, 774 So. 2d 895 (Fla. 4th DCA 2001)