TIMOTHY J. BRAUN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Timothy Braun appeals the summary denial of his Rule 3.800 motion challenging his sentencing scoresheet. The state conceded the scoresheet contained error but argued it was harmless. The appellate court reversed and remanded, holding that the trial court failed to provide adequate proof that the error did not affect Braun's sentence.
The trial court's summary denial was improper. On remand, the trial court must either provide proof that the sentencing guidelines scoresheet error did not affect Braun's sentence or resentence him with a corrected scoresheet.
[1] A trial court must provide record attachments that conclusively refute a defendant's claim of scoresheet error affecting their sentence.
[2] A concession by the state that a scoresheet contains error requires reversal and remand if the trial court fails to provide proof that the error did not affect the senten…
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Join FLexlaw to unlock all legal intelligence“the state, in its response to the trial court's order to show cause, conceded that Braun's scoresheet contained error, it maintained that the additional points were harmless error because, even if the points were deducted, Braun would still have a guidelines sentence.”
Establishes the state's harmless error argument despite conceding scoresheet error
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Join FLexlaw to unlock all legal intelligenceBraun filed a motion under Florida Rule of Criminal Procedure 3.800 arguing his sentence was based on an incorrect scoresheet. The state conceded the …
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PER CURIAM.
Timothy Braun appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800.1 In his motion, Braun argued that his sentence was based upon an incorrect score-sheet. Upon the state’s concession to this court, we reverse and remand for further proceedings consistent with this opinion.
Although the state, in its response to the trial court’s order to show cause, conceded that Braun’s scoresheet contained error, it maintained that the additional points were harmless error because, even if the points were deducted, Braun would still have a guidelines sentence. The state, accordingly, concluded that the inclusion of the points did not adversely affect Braun’s sentence.
The trial court, however, provided no record attachments, including the revised scoresheet, that conclusively refuted Braun’s claim that his sentence was adversely affected by the scoresheet error. In Prescott v. State, 698 So. 2d 602 (Fla. 4th DCA 1997), the defendant appealed an order denying his rule 3.800 motion, and as in the present case, the state conceded that a guidelines scoresheet error existed but argued the error was harmless, because even if a corrected scoresheet was used, Prescott’s sentence would be within the permitted range. See id. at 603.
This court reversed the trial court’s denial of relief in respect to the sentencing errors in Prescott’s scoresheet, reasoning that the attached guidelines did not demonstrate that the scoresheet error did not affect Prescott’s sentence. See id. The Prescott court required the trial court, on remand, to provide proof that the error did not affect his sentence or to resentence him with a corrected scoresheet. See id.
In the case at bar, the state’s response to this court concedes that the record attachments provided by the trial court fail to demonstrate that the error did not affect his sentence. Accordingly, on remand, the trial court is required to provide proof that the sentencing guidelines scoresheet error did not affect Braun’s sentence or to re-sentence him with a corrected scoresheet.
POLEN, C.J., STONE and KLEIN, JJ., concur. . The trial court treated Braun's motion as a motion filed pursuant to rule 3.800, stating it could not be treated as a rule 3.850 motion because it was not sworn. At page 9, Braun includes a “Notary Certificate” where Braun swears the statements made in the motion are true “to the best of my knowledge and belief.” Such an oath is inadequate. See Gorham v. State, 494 So. 2d 211 (Fla.1986); Scott v. State, 464 So. 2d 1171 (Fla.1985)(use of the qualifying words “to the best of [my] knowledge” renders oath improper under 3.850).
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Miller v. State, 848 So. 2d 401 (Fla. 2d DCA 2003)…he trial court correctly refused to consider it. See Oramas v. State, 615 So. 2d 853 (Fla. 2d DCA 1993) (holding that a rule 3.850 motion is facially insufficient where it is based on facts contained in an unsworn memorandum of law); Braun v. State, 789 So. 2d 1250 (Fla. 4th DCA 2001) (holding that an oath in which the defendant swears the statements contained in the rule 3.850 motion are true “to the best of my knowledge and belief’ is an inadequate oath for purposes of rule 3.850). Accordingly, we affirm the…
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Almodovar v. State, 74 So. 3d 1140 (Fla. 2d DCA 2011)…e present motion containing an “unnotarized oath,” through which Almodovar avers that “all statements are true to the best of my knowledge.” This oath is inadequate. See Miller v. State, 848 So. 2d 401, 402 (Fla. 2d DCA 2003) (citing Braun v. State, 789 So. 2d 1250, 1251 n. 1 (Fla. 4th DCA 2001) (holding that an oath in which the defendant swears the statements contained in the motion are true “to the best of my knowledge and belief’ is inadequate for the purposes of rule 3.850)). The postcon-viction court dis…
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Cherryhomes v. State, 857 So. 2d 277 (Fla. 2d DCA 2003)…. An affirmation that the statements made in the motion are true "to the best of my knowledge and belief" is not an adequate oath where the Florida Rules of Criminal Procedure require that a postconviction motion be under oath. See Braun v. State, 789 So. 2d 1250, 1251 n. 1 (Fla. 4th DCA 2001).…
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
- Scott v. State, 464 So. 2d 1171 (Fla. 1985)
- Gorham v. State, 494 So. 2d 211 (Fla. 1986)
- Prescott v. State, 698 So. 2d 602 (Fla. 4th DCA 1997)