WILLIAM TROY HERMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's motion for postconviction relief was facially insufficient because it failed to allege key facts regarding his knowledge of the scoresheet error and the timeliness of his claim.
[1] A motion for postconviction relief is facially insufficient if it fails to allege when the movant learned of the alleged error and whether the facts forming the basis of…
[2] A claim that a guilty plea was involuntary due to an inaccurate sentencing scoresheet is facially insufficient without allegations regarding the movant's knowledge of the…
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Join FLexlaw to unlock all legal intelligenceThe defendant pleaded guilty to charges in 1994 and later violated probation. At the probation violation sentencing, a new scoresheet included offense…
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SILBERMAN, Judge.
William Troy Herman appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because Herman failed to state a facially sufficient claim, we affirm.
Herman pleaded guilty to several charges pursuant to a plea agreement in 1994. He served a prison sentence and was released to probation. In 1999, he violated probation and also incurred new charges. Herman pleaded guilty to the violation of probation.
When Herman pleaded guilty to the charges in Í994, his sentencing scoresheet reflected a recommended sentencing range of three and one-half to five and one-half years in prison. At sentencing for the violation of probation, the State presented a new scoresheet that included offenses which had not been included on Herman’s original scoresheet. His potential maximum sentence was substantially increased by the inclusion of the additional offenses.
Herman alleged in his rule 3.850 motion that his 1994 plea was rendered involuntary by the inaccurate scoresheet because he would not have entered a guilty plea had he known of the true potential maximum sentence. Herman also alleged that his counsel was ineffective for failing to object to the original erroneous scoresheet. Significantly, Herman failed to allege: whether he knew of the scoresheet error, including the omission of his prior offenses, at the time of his original sentencing; when he learned of the error; whether his attorney knew of the scoresheet error; and that the facts on which his claim was based were unknown to him or his attorney, and could not have been ascertained by the exercise of due diligence. We conclude that absent such allegations, Herman’s claim is facially insufficient. Moreover, without those allegations, we are unable to determine the timeliness of Herman’s motion pursuant to rule 3.850. See Peart v. State, 756 So. 2d 42 (Fla.2000).
If Herman files a facially sufficient motion under rule 3.850 addressing the same claim, it shall not be deemed successive.
Affirmed.
THREADGILL, A.C.J., and DAVIS, J., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rankin v. State, 861 So. 2d 1222 (Fla. 2d DCA 2003)…o state a facially sufficient claim of ineffectiveness of substitute counsel. A claim that a plea was involuntarily entered based on trial counsel’s failure to object to an inaccurate scoresheet is a cognizable rule 3.850 claim. See Herman v. State, 795 So. 2d 1000 (Fla. 2d DCA 2001). However, a defendant raising such a claim must allege that he would not have entered his plea had he been aware of the correct guidelines sentencing range. See Kleppinger v. State, 760 So. 2d 1045, 1046 (Fla. 2d DCA 2000) (citing…
Authorities Cited
- Roan Peart v. State, 756 So. 2d 42 (Fla. 2000)