DAVID MAYOLO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant David Mayolo appealed the denial of his motions to enforce a plea agreement and correct an illegal sentence. The Fourth District Court of Appeal affirmed the denial, holding that Mayolo's plea withdrawal claim should have been raised as postconviction relief (which is now time-barred), and that any scoresheet calculation errors did not warrant reversal because the court would have imposed the same sentence through valid upward departure.
Mayolo's plea withdrawal claim should have been raised in a postconviction relief motion under Florida Rule of Criminal Procedure 3.850, which is now time-barred; any scoresheet errors do not warrant reversal because the record conclusively shows the trial court would have imposed the same sentence through valid upward departure regardless of calculation errors.
[1] A motion to enforce a plea agreement, when seeking to withdraw from a plea due to liability for costs of incarceration, should be raised in a motion for postconviction re…
[2] A motion for postconviction relief is time-barred if filed more than two years after the conviction and sentence have become final.
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“Appellant should have raised this in a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.”
Establishes that plea withdrawal claims based on incarceration costs must be raised through proper postconviction procedures
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Join FLexlaw to unlock all legal intelligenceMayolo was convicted and sentenced. He subsequently filed motions to enforce a plea agreement (seeking to withdraw due to liability for incarceration …
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PER CURIAM.
The opinion is withdrawn and the following is substituted in its place.
David Mayolo appeals the denial of his motions to enforce a plea agreement and to correct an illegal sentence. In his motion to enforce the plea agreement, appellant actually seeks to withdraw from the plea because of his liability for the costs of incarceration mandated by sections 960.293(2)(a) and 960.297(2), Florida Statutes (Supp.1994). Appellant should have raised this in a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Appellant is unable to file a motion for postconviction relief now, however, because more than two years have passed since his conviction and sentence have become final. See Fla. R.Crim. P. 3.850(b).
As to his motion to correct an illegal sentence, appellant claims that the scoresheet was incorrectly calculated. Even if his contentions are true, we do not deem it necessary to remand for the trial court to reconsider appellant’s sentence under a corrected scoresheet because the record conclusively proves that the court would have imposed the same sentence even with the corrected score. See Cook v. State, 803 So. 2d 867, 868 (Fla. 4th DCA 2002). When sentencing appellant, the trial court upwardly departed from the sentencing range giving reasons that demonstrate the court would have departed even if these calculation errors had been brought to its attention. A sentence need not be reversed based upon an alleged scoresheet error when a valid written departure sentence has been imposed. See Raley v. State, 675 So. 2d 170, 175 (Fla. 5th DCA 1996).
Affirmed.
FARMER, C.J., WARNER and KLEIN, JJ., concur.
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Citator
Cited By
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Lusunariz v. State, 908 So. 2d 1094 (Fla. 3d DCA 2005)…urth District that the motion to enforce the plea agreement is in substance a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. That is so because the defendant actually seeks to withdraw his plea. See Mayolo v. State, 901 So. 2d 178 (Fla. 4th DCA 2005). Because the defendant contends that the enactment of the statute created a breach of the plea agreement, the defendant should have filed his motion within two years of the July 1, 1994 effective date of the Act. Treating the def…
Authorities Cited
- Raley v. State, 675 So. 2d 170 (Fla. 5th DCA 1996)
- Brandt Cook v. State, 803 So. 2d 867 (Fla. 4th DCA 2002)