JIMMY LEE ROSS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jimmy Lee Ross appeals the denial of his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). The appellate court reversed in part and remanded, finding the trial court erred by failing to consider a 1994 sentencing guidelines scoresheet in evaluating his Heggs challenge, while affirming the denial of his other claims regarding consecutive sentencing, double jeopardy, and departure reasons.
The court reversed and remanded on the Heggs scoresheet challenge, requiring the trial court to consider the 1994 guidelines scoresheet, though if the same departure would have resulted, appellant may not be entitled to relief. The court affirmed the denial of the consecutive sentencing challenge, double jeopardy challenge, and the challenge to reasons for guidelines departure.
[1] A defendant is entitled to consideration of their sentence under a prior version of sentencing guidelines if the trial court's denial of relief was based on an incorrect…
[2] A trial court may impose consecutive sentences for two separate crimes, even if they occurred during a single criminal episode, if authorized by statute.
Previewing 2 of 4 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“We reverse the trial court's summary denial of relief on ground one since the trial court denied relief without consideration of a 1994 sentencing guidelines scoresheet.”
The court's holding that the trial court erred by failing to consider the proper scoresheet when evaluating the Heggs challenge.
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Join FLexlaw to unlock all legal intelligenceAppellant pleaded guilty to aggravated battery and possession of a firearm by a convicted felon. He was sentenced to 15 years for aggravated battery a…
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PER CURIAM.
Appellant, Jimmy Lee Ross, appeals the trial court’s order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm in part, reverse in part, and remand.
Appellant pled guilty to aggravated battery and possession of a firearm by a convicted felon, and was sentenced to 15 years in prison for the aggravated battery and 10 years for the possession of a firearm. In his motion, appellant raised the following challenges: (1) use of a 1995 sentencing guidelines scoresheet based on Heggs v. State, 759 So. 2d 620 (Fla.2000); (2) consecutive sentencing for two offenses which occurred during a single criminal episode; (3) violation of double jeopardy in separate convictions; and (4) illegal reasons given for departure from the sentencing guidelines.
We reverse the trial court’s summary denial of relief on ground one since the trial court denied relief without consideration of a 1994 sentencing guidelines scoresheet. Appellant is entitled to consideration of his sentence under the 1994 scoresheet. However, if it can be shown that the trial court would have imposed the same guidelines departure under the 1994 scoresheet, then appellant may not be entitled to sentencing relief. See Lemon v. State, 769 So. 2d 417 (Fla. 4th DCA 2000).
We affirm the trial court’s summary denial of appellant’s challenges in grounds two, three and four of the motion. Appellant’s consecutive sentences for two separate crimes were legal under section 775.021(4), Florida Statutes. Likewise, his double jeopardy challenge to his separate convictions is without merit. See Montgomery v. State, 704 So. 2d 548 (Fla. 1st DCA 1997). His challenge to the legality of the reasons for the original guidelines departure is not appropriate for rule 3.800(a), and would be time-barred if his motion were considered under Florida Rule of Criminal Procedure 3.850.
We, therefore, reverse and remand for further consideration of appellant’s Heggs challenge based on a 1994 guidelines score-sheet, but affirm as to the remainder of the trial court’s order. FARMER, STEVENSON and TAYLOR, JJ., concur.
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Cited By
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Lanadieal N. Ashe v. State, 819 So. 2d 195 (Fla. 4th DCA 2002)…ture arises from the guidelines, and post-conviction relief is due on an otherwise proper Heggs claim, unless it can be shown that the trial court would have imposed the same upward departure under the 1994 guidelines. See also Ross [*197] v. State, 804 So. 2d 359 (Fla. 4th DCA 2001). We do not address the perceived conflict between Lemon and Ray v. State, 772 So. 2d 18 (Fla. 2d DCA 2000), rev. denied, 791 So. 2d 1100 (Fla.2001), and Kwil v. State, 768 So. 2d 502 (Fla. 2d DCA 2000), as we deem it clear, here…
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State v. Ross, 863 So. 2d 137 (Fla. 2003)…PER CURIAM. We have for review Ross v. State, 804 So. 2d 359 (Fla. 4th DCA 2001), which expressly and directly conflicts with the decisions in Ray v. State, 772 So. 2d 18 (Fla. 2d DCA 2000), review denied, 791 So. 2d 1100 (Fla.2001), and Kwil v. State, 768 So. 2d 502 (Fla. 2d DCA 2000). We have jurisdiction.…
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Ross v. State, 860 So. 2d 1002 (Fla. 4th DCA 2003)…PER CURIAM. This case is before the court on remand from the Supreme Court of Florida in State v. Ross, 863 So. 2d 137, 2003 WL 22019506 (Fla. Aug. 28, 2003), which quashed this court’s opinion in Ross v. State, 804 So. 2d 359 (Fla. 4th DCA 2001), and remanded for reconsideration in light of its decision in State v. Lemon, 825 So. 2d 927 (Fla.2002). Applying Lemon, we affirm the trial court’s order denying appellant’s rule 3.800(a) motion to correct illegal sentence, as…
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Montgomery v. State, 704 So. 2d 548 (Fla. 1st DCA 1997)
- Gwenda Jean Lemon v. State, 769 So. 2d 417 (Fla. 4th DCA 2000)