IAN E. RICHARDSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richardson challenged the denial of his Rule 3.850 motion alleging ineffective assistance of counsel for failing to object to the prosecutor's use of an unconstitutional 1995 sentencing guidelines scoresheet when sentencing him on a probation violation. The court found merit in this claim and reversed, holding that counsel's failure to object to guidelines declared unconstitutional three months earlier constituted ineffective assistance warranting resentencing.
Richardson's claim of ineffective assistance for counsel's failure to object to the unconstitutional 1995 scoresheet has merit. Richardson has properly alleged sufficient facts to warrant relief, including that he has standing under Heggs and would not have entered his plea had he known of the scoresheet errors.
[1] A defendant may be entitled to relief when sentenced under an unconstitutional sentencing guidelines scoresheet that was declared unconstitutional prior to sentencing.
[2] Ineffective assistance of counsel may be established by counsel's failure to object to the prosecutor's use of an unconstitutional sentencing guidelines scoresheet.
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Join FLexlaw to unlock all legal intelligence“The appellant alleged that his counsel was ineffective in allowing him to be sentenced upon violation of probation to a sentence imposed pursuant to the 1995 guidelines, which had been declared unconstitutional three months earlier in Heggs v. State”
Establishes the core factual basis for the ineffective assistance claim—counsel failed to object to unconstitutional guidelines
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Join FLexlaw to unlock all legal intelligenceRichardson was sentenced on a probation violation using the 1995 sentencing guidelines scoresheet. The 1995 guidelines had been declared unconstitutio…
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PER CURIAM.
The appellant timely challenges the denial of his motion brought pursuant to Florida Rule of Criminal Procedure 3.850, in which he alleged that the trial court erred in imposing his sentence and that counsel provided ineffective assistance in four ways. Only his claim that his counsel was ineffective for failing to object to the prosecutor’s use of a 1995 scoresheet appears to have merit. As to that claim, we reverse.
The appellant alleged that his counsel was ineffective in allowing him to be sentenced upon violation of probation to a sentence imposed pursuant to the 1995 guidelines, which had been declared unconstitutional three months earlier in Heggs v. State, 759 So. 2d 620 (Fla.2000). Although the appellant pled to the violation of probation, the record does not reveal that his sentence was negotiated. See Hipps v. State, 790 So. 2d 583 (Fla. 1st DCA 2001). The appellant has properly alleged that he has standing to seek relief pursuant to Heggs and that the sentence imposed could not have been imposed under the 1994 guidelines without a departure. See Trapp v. State, 760 So. 2d 924 (Fla.2000); Heggs, 759 So. 2d at 629. He further alleged that he would not have entered his plea had he known of the scoresheet errors. See Brazeail v. State, 821 So. 2d 364 (Fla. 1st DCA 2002). We conclude that these allegations are sufficient to warrant relief. See and compare Booker v. State, 771 So. 2d 1187 (Fla. 1st DCA 2000).
We according reverse the summary denial of this claim and remand to the trial court for further proceedings. Should the trial court be unable to support its summary denial with record attachments conclusively establishing that the appellant is entitled to no relief, the court is directed to hold an evidentiary hearing to determine the merits of the appellant’s claim and the appropriate relief. If the appellant entered a straight up plea to the violation of probation, he is entitled to be resentenced under the 1994 guidelines; if the appellant’s sentence was negotiated, he is entitled to withdraw his plea. See Jolly v. State, 805 So. 2d 969 (Fla. 2d DCA 2001).
AFFIRMED IN PART, REVERSED IN PART and REMANDED.
BARFIELD, MINER and POLSTON, JJ., concur.
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Gregory Banks v. State, 887 So. 2d 1191 (Fla. 2004)…ion, undue persuasion, promises, mistake, fraud, inadvertence or ignorance). Booker v. State, 771 So. 2d 1187, 1188 (Fla. 1st DCA 2000). In fact, the First District has allowed similar plea challenges in other cases. See, e.g., Richardson v. State, 829 So. 2d 364, 365 (Fla. 1st DCA 2002) (remanding a Heggs claim for evidentiary hearing with the instructions: “If the appellant entered a straight up plea to the violation of probation, he is entitled to be resentenced under the 1994 guidelines; if the appellant…
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Williams v. State, 844 So. 2d 700 (Fla. 2d DCA 2003)…rial court’s ruling that Williams’ sworn motion is facially insufficient because it fails to allege that but for counsel’s errors, he would not have pleaded no contest. See Davis v. State, 697 So. 2d 957, 958 (Fla. 2d DCA 1997); Richardson v. State, 829 So. 2d 364, 865 (Fla. 1st DCA 2002); Brazeail v. State, 821 So. 2d 364, 368 (Fla. 1st DCA 2002). We affirm without prejudice to Williams’ right to file a facially sufficient rule 3.850 motion. Because the two-year limit for filing rule 3.850 motions expired…
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Bush v. State, 929 So. 2d 685 (Fla. 1st DCA 2006)…cludes knowledge of the contraband). However, we agree with Bush (and the State concedes) that, under Heggs v. State, 759 So. 2d 620 (Fla.2000), Appellant is entitled to be resentenced under the 1994 sentencing guidelines. See Richardson v. State, 829 So. 2d 364 (Fla. 1st DCA 2002). We also agree with Bush that the trial court’s stated basis for the departure [*687] sentence, that “the violation involves obscene or pornographic materials which was a special condition of your probation,” is impermissible bec…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Xzavier Trapp v. State, 760 So. 2d 924 (Fla. 2000)
- Brazeail v. State, 821 So. 2d 364 (Fla. 1st DCA 2002)
- Booker v. State, 771 So. 2d 1187 (Fla. 1st DCA 2000)
- Hipps v. State, 790 So. 2d 583 (Fla. 1st DCA 2001)
- Jolly v. State, 805 So. 2d 969 (Fla. 2d DCA 2001)