JAMES RILEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a claim of ineffective assistance of counsel for failing to object to uncounseled misdemeanor convictions on a sentencing score sheet is legally viable for post-conviction relief.
The defendant challenged the summary denial of his motion for post-conviction relief, specifically alleging ineffective assistance of counsel for not …
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PER CURIAM.
James Riley challenges the trial court’s summary denial of his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s summary denial of all claims except for ground seven, in which Riley alleged ineffective assistance of his trial counsel for failure to object to assessments on his sentencing guidelines score-sheet for prior uncounseled misdemeanor convictions. This is a legally viable claim for postconviction relief. Hannah v. State, 876 So. 2d 655 (Fla. 2d DCA 2004); Hlad v. State, 585 So. 2d 928 (Fla.1991). See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
We reject the state’s suggestion, devoid of any legal or factual basis in the record below, that defense counsel “presumably inquired” into whether this was the case at the original sentencing in 1994. Also, we do not find any deficiency of counsel as alleged to have been harmless such that no prejudice could be shown. The record shows that appellant’s sentence, if the misdemeanor convictions were uncounseled and erroneously included, exceeded the recommended and permitted ranges for his total score.
Accordingly, we affirm the trial court’s summary denial of all grounds except for ground seven, and reverse the summary denial of that ground for the trial court to examine the record to determine whether anything conclusively refutes Riley’s claim. If the trial court finds record grounds to refute this claim, it may again deny the motion, attaching to its order all supporting documentation. Otherwise, an evidentiary hearing may be required.
Affirmed in part, reversed in part, and remanded.
GUNTHER, WARNER and GROSS, JJ., concur.
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Riley v. State, 8 So. 3d 1285 (Fla. 4th DCA 2009)…HAZOURI, J. In Riley v. State, 975 So. 2d 507 (Fla. 4th DCA 2007), this court reversed the trial court’s summary denial of claim seven in appellant’s motion for posteonviction relief, affirming the denial of his other claims. We remanded for attachment of portions of the record to refute appell…
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Riley v. State, 145 So. 3d 886 (Fla. 4th DCA 2014)…CIKLIN, J. This is the third appeal by Riley of the denial of his motion for postconviction relief.1 See Riley v. State, 8 So. 3d 1285 (Fla. 4th DCA 2009); Riley v. State, 975 So. 2d 507 (Fla. 4th DCA 2007). As one of his central themes, Riley continues to assert that a sentencing scoresheet used early on in the process was flawed. He argues that certain misdemeanor convictions should not have been included in the scoresheet calcula…
Authorities Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984)
- Hlad v. State, 585 So. 2d 928 (Fla. 1991)
- Hannah v. State, 876 So. 2d 655 (Fla. 2d DCA 2004)