WILLIE PURIFOY, A/K/A WILLIE RAY PURIFOY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2009-04-15
No. 2D08-1665
FULMER and KELLY, JJ., Concur.
10 So. 3d 197 Florida District Court of Appeal, Second District (2009) Positive Treatment
Cited by 4 cases

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Synopsis

The appellate court affirmed the summary denial of postconviction relief, agreeing that the defendant was not entitled to relief on his claims of scoresheet error and an incorrect restitution order, though it disagreed with the postconviction court's reasoning for denying the scoresheet claim.


Holding

The court affirmed the denial of relief, holding that while the postconviction court improperly relied on a county website to deny the scoresheet claim, the defendant was not entitled to relief because the scoresheet error was not apparent from the record. The court also affirmed the denial of the restitution claim, finding it to be a scrivener's error that should be corrected but did not warrant postconviction relief.


Headnotes

[1] A postconviction court may not rely on external documents, such as a county website, not part of the original trial record to determine the merits of a rule 3.800(a) moti…

[2] A claim that a defendant's sentencing scoresheet erroneously included points for prior convictions not adjudicated requires an evidentiary hearing and is not cognizable u…

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Facts & Procedural History

Willie Purifoy appealed the summary denial of his motion for postconviction relief, which raised three grounds: a scoresheet error for a prior convict…

The full statement of facts, procedural history, and disposition for this case are member content.

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Opinion of the Court
WALLACE, Judge.

WALLACE, Judge.

Willie Purifoy appeals the summary denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.800(a). We affirm the postconviction court’s summary denial of ground two without comment. We also affirm the summary denial of grounds one and three because we agree that Mr. Purifoy is not entitled to relief. However, we write because we disagree with the postconviction court’s reasoning.

I. THE RELEVANT PROCEDURAL HISTORY

Mr. Purifoy was charged with burglary with assault, robbery, and fleeing or attempting to elude. He pleaded nolo con-tendere to one count of robbery in accordance with a negotiated plea agreement. The agreement provided for a sentence of 44.85 months’ imprisonment contingent on Mr. Purifoy scoring less than eighty-eight total sentence points, plus payment to the victim of $400 in restitution. As part of the negotiation, the State agreed to nolle pros the charges of burglary with assault and fleeing or attempting to elude. On December 12, 2005, Mr. Purifoy was adjudicated guilty of robbery and sentenced to 44.85 months in prison in accordance with the plea agreement. Mr. Purifoy did not appeal his judgment and sentence.

On September 11, 2007, Mr. Purifoy filed a rule 3.800(a) motion raising three grounds. First, Mr. Purifoy alleged that his scoresheet erroneously included points for a crime for which he had not been adjudicated guilty. Second, he claimed that the trial court used the wrong sentencing scoresheet. Third, he asserted that his restitution order named a different person.

On March 12, 2008, the postconviction court summarily denied relief on all three grounds. This appeal followed. We will separately consider grounds one and three of Mr. Purifoy’s motion.

II. DISCUSSION

A. Ground One — Scoresheet Error

In ground one of his motion, Mr. Purifoy complained that his sentencing scoresheet included as a scored prior conviction a burglary for which he had not been adjudicated guilty. Mr. Purifoy claimed that he was never adjudicated guilty in Escambia County case number 94-03167, but his sentencing scoresheet included points for a conviction in that case. The postconviction court consulted a website maintained by Escambia County. The website indicated that Mr. Purifoy had been adjudicated guilty in case number 94-03167. On this basis, the postconviction court denied ground one of the motion.

We are extremely doubtful that the website maintained by Escambia County was a part of the trial record in the proceeding in which the challenged sentence was imposed. Nevertheless, the postcon-viction court relied on that website as the basis for denying this claim. Because “[t]he merit[s] of a rule 3.800(a) motion ... can ... be determined only by reference to the record of the proceedings in which the challenged sentence was imposed,” Tyson v. State, 852 So.2d 428, 429 (Fla. 2d DCA 2003), it was improper for the post-conviction court to consider and rely on the website.

*200However, Mr. Purifoy is not entitled to postconviction relief on ground one of his motion for a different reason. A claim that a defendant’s scoresheet erroneously included as scored prior convictions crimes for which he or she had never been convicted requires an evidentiary hearing. Walker v. State, 940 So.2d 1215, 1216 (Fla. 2d DCA 2006); see Lomont v. State, 506 So.2d 1141, 1141-42 (Fla. 2d DCA 1987). It follows that Mr. Purifoy’s claim was not cognizable under rule 3.800(a) because the alleged error is not apparent from the face of the record. See Tyson, 852 So.2d at 429; Lomont, 506 So.2d at 1141-42.

Furthermore, Mr. Purifoy’s rule 3.800(a) motion could not have been treated as a motion under Florida Rule of Criminal Procedure 3.850 because he did not seek to withdraw his plea. See Goins v. State, 889 So.2d 918, 919 (Fla. 2d DCA 2004). We note that the time for Mr. Purifoy to file a rule 3.850 motion expired while his rule 3.800(a) was pending before the postconviction court. Accordingly, as in Goins, our affirmance of the postconviction court’s order on this ground is without prejudice to Mr. Purifoy’s right to file in the lower court, within sixty days of the date of this court’s mandate, a motion seeking to withdraw his plea under rule 3.850. If Mr. Purifoy files his motion within sixty days, the motion should be considered timely and not deemed successive. See 889 So.2d at 919. As we did in Goins, we caution Mr. Purifoy that filing a motion to withdraw his plea may not be in his best interest. See id.

B. Ground Three — Incorrect Name on Restitution Order

In ground three of his motion, Mr. Purifoy alleges that his restitution order should be vacated because it names a different person — “Willie Lee Purifoy.” Mr. Purifoy’s full name is Willie Ray Purifoy. The postconviction court denied ground three of the motion because the scrivener’s error in the restitution order did not entitle Mr. Purifoy to relief.

We agree with the postconviction court’s conclusion and note the following facts from the record. First, Mr. Purifoy’s plea form includes a provision whereby Mr. Purifoy agreed to pay restitution of “$400.00 to Pearl Levins.” Second, the judgment and sentence names “Willie Ray Purifoy” as the defendant in case number CF05-000848-XX. Third, the restitution order on page six of the judgment and sentence names “Willie Lee Purifoy” as the defendant in case number CF05-000848-XX and orders “RESTITUTION TO PEARL LEVINS $400.00.” Because the reference to “Willie Lee Purifoy” in the written restitution order is nothing more than a clerical error at variance with the record, we conclude that this reference is a scrivener’s error. See Migdal v. State, 970 So.2d 445, 448-49 (Fla. 4th DCA 2007) (quoting Ashley v. State, 850 So.2d 1265, 1268 n. 3 (Fla.2003)). Accordingly, we affirm the circuit court’s summary denial of relief on ground three but direct that on remand the postconviction court shall correct this scrivener’s error in the restitution order. See Lindquist v. State, 968 So.2d 606, 607 (Fla. 2d DCA 2007).

Affirmed and remanded with directions.

FULMER and KELLY, JJ., Concur.


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Citator

Cited By

  • Jonny Sanders v. State (Fla. 4th DCA 2021)
    …m that a defendant’s scoresheet erroneously included as scored prior convictions crimes for which he or she had never been convicted requires an evidentiary hearing.” Murphy v. State, 273 So. 3d 1147 (Fla. 2d DCA 2019) (quoting Purifoy v. State, 10 So. 3d 197, 200 (Fla. 2d DCA 2009)); see also Fla. R. Crim. P. 3.800(b)(2)(B) (directing trial courts to follow the procedure under rule 3.800(b)(1)(B), which provides that an evidentiary hearing should be held if necessary). Therefore, we reverse and re…
  • Murphy v. State, 273 So. 3d 1147 (Fla. 2d DCA 2019)
  • Jonny Sanders v. State (Fla. 4th DCA 2022)
    …claim that a defendant’s scoresheet erroneously included as scored prior convictions crimes for which he or she had never been convicted requires an evidentiary hearing.” Murphy v. State, 273 So. 3d 1147 (Fla. 2d DCA 2019) (quoting Purifoy v. State, 10 So. 3d 197, 200 (Fla. 2d DCA 2009)); see also Fla. R. Crim. P. 3.800(b)(2)(B) (directing trial courts to follow the procedure under rule 3.800(b)(1)(B), which provides that an evidentiary hearing should be held if necessary). Therefore, we reverse and remand…

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