JOSEPH PEMBROOK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Pembrook appealed the denial of his post-conviction relief motion under Florida Rule of Criminal Procedure 3.850. The court affirmed the denial of three claims that improperly challenged his guilty plea, but reversed and remanded on a scoresheet error claim, finding that the sentencing guidelines calculation was incorrect and the error was not harmless.
The court affirmed denial of the three claims alleging coercion and waiver of trial because the plea colloquy record conclusively refuted these allegations. However, the court reversed and remanded on the scoresheet error claim because the scoresheet miscalculation was not harmless error, requiring resentencing under a corrected scoresheet unless the State demonstrates proper calculation.
[1] A defendant waives known issues by entering a guilty plea, unless the issues go behind the plea itself.
[2] A defendant is bound by sworn assertions made during a plea colloquy.
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Join FLexlaw to unlock all legal intelligence“Pembrook is bound by his sworn assertions during the plea colloquy that he did not want to go to trial and wanted to enter the plea.”
Establishes that plea waivers are conclusive and cannot be challenged through post-conviction claims alleging coercion
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Join FLexlaw to unlock all legal intelligencePembrook entered a guilty plea after a plea hearing where his counsel urged him to challenge the charges at trial, but Pembrook insisted on pleading g…
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Joseph Pembrook appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. We affirm the denial of three of Pembrook’s four claims which improperly attempted to go behind his plea and raise known issues that were waived by entry of the plea. See Stano v. State, 520 So.2d 278 (Fla.1988); Gidney v. State, 925 So.2d 1076 (Fla. 4th DCA 2006). Pembrook’s allegations that counsel coerced him to enter a plea and that he wanted to go to trial are conclusively refuted by the record. The transcript of the plea hearing shows that counsel urged Pembrook to challenge the charges at trial, but Pembrook insisted on entering a plea. Pembrook is bound by his sworn assertions during the plea colloquy that he did not want to go to trial and wanted to enter the plea. Iacono v. State, 930 So.2d 829 (Fla. 4th DCA 2006).
Pembrook filed a timely supplemental motion, however, arguing scoresheet error. Pembrook alleged that the State had improperly scored three second-degree burglaries on the scoresheet. While the degree of the burglary offenses does not directly affect the scoring, Pembrook is correct that burglary of a dwelling is scored as a Level 7 offense which incurs more points than burglary of a structure, a Level 4 offense. § 921.0022(3), Fla. Stat. (2003). The records attached by the State to its response below showed that Pem-brook had two prior burglary of a dwelling convictions and two prior burglary of a structure convictions. In this appeal, the State concedes that it appears that the scoresheet improperly included three Level 7 burglary offenses and one Level 4 burglary offense as prior record. The scoresheet should have scored two Level 7 burglaries and two Level 4 burglaries.
The trial court sentenced Pembrook to the lowest permissible sentence under the scoresheet. Under a corrected scoresheet, the lowest permissible sentence would be reduced by 11.6 months. The record does not demonstrate that the trial court would have imposed the same sentence under a correct scoresheet, so the error is not harmless. State v. Anderson, 905 So.2d 111 (Fla.2005) (holding that the “would-have-been-imposed” harmless error standard applies to scoresheet errors raised in rule 3.850 motions). Accordingly, we reverse and remand for further proceedings. On remand, if the State is unable to show that the scoresheet was properly calculated, then Pembrook must be resentenced under a corrected scoresheet.
FARMER, STEVENSON and SHAHOOD, JJ., concur.
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Citator
Cited By
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Earnest Nettles v. State, 125 So. 3d 935 (Fla. 4th DCA 2013)…cord. The record does not conclusively show that Nettles in fact has these prior convictions or that the trial court would have imposed the same sentence with a corrected scoresheet. State v. Anderson, 905 So. 2d 111 (Fla.2005); Pembrook v. State, 2 So. 3d 371 (Fla. 4th DCA 2008). An evi-dentiary hearing may be needed to determine Nettles’ prior convictions. Rodriguez v. State, 1 So. 3d 1255 (Fla. 4th DCA 2009). Accordingly, we reverse and remand for further proceedings on this claim. The summary denial o…
Authorities Cited
- State v. Anderson, 905 So. 2d 111 (Fla. 2005)
- Stano v. State, 520 So. 2d 278 (Fla. 1988)
- Iacono v. State, 930 So. 2d 829 (Fla. 4th DCA 2006)
- Gidney v. State, 925 So. 2d 1076 (Fla. 4th DCA 2006)