CALVIN SWAIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Calvin Swain appealed the denial of his postconviction relief motion, claiming sentencing errors including the trial court's failure to use separate scoresheets for felonies committed before and after January 1, 1994. The court reversed on the scoresheet issue, finding Swain entitled to resentencing, but affirmed the denial of other claims.
The court reversed on the scoresheet issue, holding that because the record did not conclusively demonstrate Swain would have received the same sentence with correct scoresheets, he is entitled to resentencing. The court affirmed the denial of the Heggs claim as facially insufficient. The court held that the gain-time issue is not properly raised in a rule 3.800(a) motion and requires administrative exhaustion first.
[1] A trial court must use separate sentencing scoresheets for offenses committed before January 1, 1994, and for offenses committed on or after that date.
[2] A defendant is entitled to resentencing if the attachments to an order denying relief do not conclusively demonstrate that the defendant would have received the same sent…
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Join FLexlaw to unlock all legal intelligence“A trial court must use a 1983 scoresheet for all pending offenses that were committed before January 1, 1994, and a separate 1994 scoresheet for all pending offenses that were committed on or after that date.”
Establishes the legal standard for correct scoresheet application in sentencing
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSwain was convicted of two separate felonies, one committed in 1993 and another committed after January 1, 1994. The trial court used a single scoresh…
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STRINGER, Judge.
Calvin Swain appeals the trial court’s summary denial of his motion for postcon-viction relief filed pursuant to Florida Rules of Criminal Procedure 3.800(a) and 3.850. One of Swain’s claims has merit, and on this one issue we reverse. The order of the trial court is affirmed in all other respects,
Swain alleged that two separate score-sheets should have been used for two separate felonies, one of which occurred in 1993, and the other of which occurred after January 1, 1994. The trial court conceded that separate scoresheets should have been used, but denied relief on the ground that Swain’s sentence would have been permissible with separate scoresheets. We reverse.
A trial court must use a 1983 scoresheet for all pending offenses that were committed before January 1, 1994, and a separate 1994 scoresheet for all pending offenses that were committed on or after that date. Dillard v. State, 728 So. 2d 725 (Fla.1999). Because the attachments to the order denying relief do not conclusively demonstrate that Swain would have received the same sentence with the correct scoresheets, he is entitled to be resentenced with accurate scoresheets. See Carter v. State, 705 So. 2d 582 (Fla. 2d DCA 1997).
Swain also raised a claim pursuant to Heggs v. State, 759 So. 2d 620 (Fla.2000). The trial court correctly denied the claim as facially insufficient because Swain did not allege that the sentence imposed constituted a departure under the 1994 sentencing guidelines. See Daniels v. State, 771 So. 2d 57 (Fla. 2d DCA 2000). We affirm without prejudice to Swain’s right to file a facially sufficient motion pursuant to rule 3.800(a), or, if he wishes to withdraw his plea and can state sufficient grounds, a motion pursuant to rule 3.850. See Murphy v. State, 773 So. 2d 1174 (Fla. 2d DCA 2000) (en banc).
Swain lastly claimed that, pursuant to Heggs, he was entitled to increased gain time. This issue is not properly raised in a rule 3.800(a) motion. Swain must first exhaust his administrative remedies with the Department of Corrections. See Clements v. State, 761 So. 2d 1245 (Fla. 2d DCA 2000). If he is not satisfied with the ruling of the Department, he can then file a petition for writ of mandamus with the appropriate circuit court. See Newsome v. Singletary, 637 So. 2d 9 (Fla. 2d DCA 1994). Affirmed in part, reversed in part, and remanded.
GREEN, A.C.J., and DAVIS, J., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Birdsong v. State, 875 So. 2d 725 (Fla. 2d DCA 2004)…d the motion as successive. We affirm the trial court orders denying Birdsong’s motions because such a claim is not properly raised in a rule 3.800(a) motion and should be addressed through any available administrative avenues. See Swain v. State, 795 So. 2d 1031 (Fla. 2d DCA 2001). However, the trial court erred in concluding that the DOC has exclusive authority to award gain time because Birdsong is not in the DOC’s custody. We note, without commenting on the merits of Birdsong’s claim for gain time, that…
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Pagliaro v. Penske Auto Ctrs., Inc., 773 So. 2d 1174 (Fla. 2d DCA 2000)
- Hogan v. Ardc Corp., 637 So. 2d 9 (Fla. 4th DCA 1994)
- Clements v. State, 761 So. 2d 1245 (Fla. 2d DCA 2000)
- Hickey v. Dunn & Corey, 761 So. 2d 1245 (Fla. 3d DCA 2000)
- Daniels v. State, 771 So. 2d 57 (Fla. 2d DCA 2000)
- Sherod Dillard v. State, 728 So. 2d 725 (Fla. 1999)
- Carter v. State, 705 So. 2d 582 (Fla. 2d DCA 1997)