BRIAN WEST, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Brian West appealed his sentence for lewd and lascivious activity, challenging the accuracy of his sentencing scoresheet, particularly whether 40 points for sexual penetration should have been assessed. The court reversed and remanded for resentencing on the penetration points issue, finding the record insufficient to determine whether penetration was established at the plea hearing.
The court reversed West's sentence and remanded for resentencing on the issue of whether the penetration points were properly scored. The court affirmed the scoresheet's scoring of West's prior convictions but reversed on the sexual penetration points issue due to insufficient record evidence regarding what factual basis was established at the plea hearing.
[1] A defendant may challenge the accuracy of a scoresheet used for sentencing at a probation revocation hearing.
[2] A defendant may raise a challenge to the scoring of points for sexual penetration at a probation revocation sentencing hearing, even if the plea agreement did not explici…
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Join FLexlaw to unlock all legal intelligence“We reverse West's sentence and remand for further proceedings on the issue of whether the penetration points were properly scored.”
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Join FLexlaw to unlock all legal intelligenceIn 1996, West pleaded guilty to one count of lewd and lascivious activity and was placed on 60 months' probation. He later violated probation and was …
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NORTHCUTT, Judge.
In 1996, Brian West pleaded guilty to one count of lewd and lascivious activity.1 The court placed him on 60 months’ probation. He eventually violated that probation and was sentenced to 62.5 months’ imprisonment. In this appeal, he challenges the accuracy of the scoresheet prepared when he was first placed on probation and subsequently used to determine his sentence at the revocation hearing. We reverse and remand for a new sentencing hearing.
At sentencing, and in a subsequently filed motion to correct a sentencing error under Florida Rule of Criminal Procedure 3.800(b), West made two arguments. First, he claimed that some of his prior record was improperly scored. Second, he asserted that he should not have been assessed 40 points for sexual penetration because his plea agreement did not contemplate these points. He contended he could only be assessed 18 points for sexual contact. The State filed a corrected score-sheet concerning West’s previous crimes, which resulted in a range of incarceration between 58.95 months and 98.25 months, rather than the previously-calculated range of 62.5 months to 104.25 months. The circuit court denied West’s 3.800(b) motion and did not resentence him pursuant to the corrected point total. Finding no error in the scoring of West’s prior convictions, we affirm on that issue without further discussion. But we reverse and remand for further proceedings on his challenge to the points scored for sexual penetration.
Procedurally, West was permitted to complain about the inclusion of these points on his original scoresheet at his sentencing for a violation of probation. See Wright v. State, 707 So. 2d 385 (Fla. 2d DCA 1998). He attached to his 3.800(b) motion a copy of his plea agreement, which did not mention sexual penetration points. The information filed against him charged lewd and lascivious activity based on “penetration and/or union” with the victim’s vagina. In its response to West’s motion, the State asserted that he did not object to the factual basis recited at his plea hearing. However, because our record contains no transcript of the plea hearing, we cannot discern whether the State’s factual basis included penetration.
We reverse West’s sentence and remand for further proceedings on the issue of whether the penetration points were properly scored.
SILBERMAN and COVINGTON, JJ., Concur. . § 800.04(3), Fla. Stat. (1995).
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Citator
Cited By
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Stubbs v. State, 951 So. 2d 910 (Fla. 2d DCA 2007)…ay challenge the inclusion of [sentencing] points at a revocation proceeding even when those points were not challenged at the original sentencing or on direct appeal.” Matton v. State, 872 So. 2d 308, 312 (Fla. 2d DCA 2004); see also West v. State, 823 So. 2d 174, 174 (Fla. 2d DCA 2002); Spell v. State, 731 So. 2d 9, 10 (Fla. 2d DCA 1999); Bogan v. State, 725 So. 2d 1216, 1217 (Fla. 2d DCA 1999). This rule applies even where the defendant pleads pursuant to a negotiated plea if he or she did not specifically…
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Carter v. State, 920 So. 2d 735 (Fla. 5th DCA 2006)…gation that Appellant committed sexual battery “by placing his penis in union with” the vagina of the victim. The State concedes that penetration points are not appropriate under the facts as alleged in the information. In reliance on West v. State, 823 So. 2d 174 (Fla. 2d DCA 2002), it urges, however, that because the plea transcript is not part of the record, we should remand this cause to the trial court to determine if there is a basis in fact to support the assessment of penetration points. We disagree a…
Authorities Cited
- Darian Wright v. State, 707 So. 2d 385 (Fla. 2d DCA 1998)