FIDEL LEYVA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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On Motion for Rehearing and Motion to Withdraw Mandate
POLEN, J.
Appellant, Fidel Leyva, has filed a motion for rehearing and a motion to withdraw this court’s mandate issued on April 17, 2006. We deny Leyva’s motion for rehearing, but withdraw our previously entered mandate to make the following correction to the previously issued opinion.
In our opinion issued in Leyva v. State, we affirmed Leyva’s conviction for attempted sexual battery, and his sentence of twenty years in prison. 925 So. 2d 393 (Fla. 4th DCA 2006). We reversed Ley-va’s conviction for lewd and lascivious conduct and his accompanying fifteen-year sentence. Id. Leyva’s motion for rehearing argues that, based on this court’s reversal of his lewd and lascivious conviction, his total sentencing points are lower, and that the record does not conclusively show that the trial court would have imposed the same sentence using the corrected score-sheet. We find merit in Leyva’s assertion, and remand to the trial court to allow it to consider re-sentencing Leyva for attempted sexual battery using a corrected score-sheet. See Jones v. State, 901 So. 2d 255 (Fla. 4th DCA 2005).
SHAHOOD and TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Barajas v. State, 974 So. 2d 542 (Fla. 4th DCA 2008)…e proper test for determining whether re-sentencing is required as a result of a scoresheet error raised in a 3.850 motion is whether the record conclusively shows the same sentence would have been imposed with a correct scoresheet); Leyva v. State, 929 So. 2d 1210 (Fla. 4th DCA 2006). Accordingly, we reverse the circuit court’s order and remand for the court to re-sentence Barajas on the remaining charges with a corrected scoresheet. We affirm the denial of Barajas’ remaining claims. STONE, FARMER and MAY…
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Fidel Leyva v. State, 127 So. 3d 570 (Fla. 4th DCA 2012)…firmed this conviction on appeal, but found that a lewd and lascivious conduct conviction violated double jeopardy and remanded the case for resen-tencing. Leyva v. State, 925 So. 2d 393 (Fla. 4th DCA 2006), opinion corrected on denial of rehearing, 929 So. 2d 1210 (Fla. 4th DCA 2006). This court affirmed following resentencing. Leyva v. State, 975 So. 2d 1151 (Fla. 4th DCA 2008) (mandate issued March 24, 2008). In July 2011, appellant filed this untimely postconviction motion. Fla. R.Crim. P. 3.850(b). The m…
Authorities Cited
- Jones v. State, 901 So. 2d 255 (Fla. 4th DCA 2005)
- Fidel Leyva v. State, 925 So. 2d 393 (Fla. 4th DCA 2006)