ELIAS SOTO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the summary denial of Soto's Rule 3.800(a) motion challenging duplicative charges on his scoresheet, holding that such claims cannot be raised under Rule 3.800(a) but may be pursued as ineffective assistance claims under Rule 3.850 if properly sworn.
Claims of duplicative charges on a sentencing scoresheet cannot be raised in a motion under Florida Rule of Criminal Procedure 3.800(a) when the duplication cannot be determined from the face of the record.
[1] Claims that charges on a sentencing scoresheet are duplicative cannot be raised under Florida Rule of Criminal Procedure 3.800(a) when the duplication cannot be determine…
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Join FLexlaw to unlock all legal intelligenceSoto was charged in two separate cases with identical charges: trafficking, delivery of heroin, and possession of heroin. He filed a motion claiming t…
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SALCINES, Judge.
Elias Soto appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Soto alleges that certain scored charges on his scoresheet were duplicative of other charges on the same scoresheet. Soto was charged by information with one count of trafficking, one count of delivery of heroin, and one count of possession of heroin in case number 99-01919. He was then charged by amended information with one count of trafficking, one count of delivery of heroin, and one count of possession of heroin in case number 99-06973. Soto claims that the charges in the amended information are duplicative of the charges in the original information. However, it cannot be determined from the face of the record whether Soto is correct. Therefore, this claim cannot be raised in a motion filed pursuant to rule 3.800. See Lomont v. State, 506 So. 2d 1141 (Fla. 2d DCA 1987).
It is possible that the claim may be raised as a claim of ineffective assistance of trial counsel pursuant to rule 3.850. Id. at 1142. Soto’s motion, while timely as a rule 3.850 motion, could not be treated as such because it was not sworn. We, therefore, affirm the order of the trial court without prejudice to Soto’s right to raise this issue in a timely, properly sworn rule 3.850 motion, if he is able to do so.
Affirmed.
SILBERMAN and COVINGTON, JJ., Concur.
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Citator
Cited By
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Butdorf v. State, 150 So. 3d 849 (Fla. 2d DCA 2014)…onvictions is not a claim of scoresheet error that can be resolved on the face of the record and is cognizable in a rule 3.850 motion only if raised as a claim of ineffective assistance in failing to object to such an error); see also Soto v. State, 814 So. 2d 533, 533 (Fla. 2d DCA 2002) (holding that a scoresheet error that cannot be determined “from the face of the record” may be raised as a claim of ineffective assistance of trial counsel pursuant to rule 3.850). Mr. Butdorf alleged that trial counsel' err…
Authorities Cited
- Lomont v. State, 506 So. 2d 1141 (Fla. 2d DCA 1987)