THOMAS KELSEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas Kelsey challenged the denial of his motion to correct an illegal sentence, arguing his scoresheet was improper. The court reversed and remanded, holding that while the motion was technically deficient under Rule 3.800(a), Kelsey was entitled to one opportunity to file a facially sufficient Rule 3.850 motion to pursue his scoresheet error claim.
The court reversed and remanded, holding that although Kelsey's motion was facially insufficient if treated as a Rule 3.850 motion, he was entitled to one opportunity to amend and file a facially sufficient Rule 3.850 motion to raise his scoresheet error claims.
[1] A motion to correct an illegal sentence under Rule 3.800(a) is not the proper vehicle to challenge a scoresheet error if the sentence could have been imposed absent the e…
[2] A motion challenging a scoresheet error, if treated as a Rule 3.850 motion, may be subject to the 'would-have-been-imposed' test rather than the 'could-have-been-imposed'…
Previewing 2 of 5 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“if treated as a motion filed pursuant to rule 3.850, it appears that the appellant would be entitled to relief because the 'would-have-been-imposed' test, rather than the 'could-have-been imposed' test, would apply”
Establishes the critical difference between the two rules and why treatment as a Rule 3.850 motion would likely result in relief for the defendant.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn July 2009, the trial court revoked Kelsey's probation and sentenced him to concurrent terms totaling twenty years' imprisonment. This Court affirme…
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The appellant challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). For the reasons discussed below, we reverse and remand for the trial court to give the appellant an opportunity to file his claims in a facially sufficient rule 3.850 motion.
In July of 2009, the trial court revoked the appellant’s probation and sentenced him to concurrent terms totaling twenty years’ imprisonment. This Court affirmed in June of 2010. In January of this year the appellant filed the instant motion to correct illegal sentence asserting that his scoresheet was improper. The trial court denied relief because the motion was filed pursuant to Florida Rule of Criminal Procedure 3.800(a), and the sentence could have been imposed absent any error on the scoresheet. See Brooks v. State, 969 So.2d 238 (Fla.2007) (under “could-have-been-imposed” test, if sentence could have been imposed absent scoresheet error, defendant is not entitled to relief). However, if treated as a motion filed pursuant to rule 3.850, it appears that the appellant would be entitled to relief because the “would-have-been-imposed” test, rather than the “could-have-been imposed” test, would apply.1 See Brooks v. State, 969 So.2d 238 (Fla.2007). The motion was sworn and, contrary to the trial court’s ruling, would be timely if treated as a rule 3.850 motion as it was filed within two years of the appellant’s judgment and sentence becoming final. See Fla. R. Crim. P. 3.850(b) (motion must be filed within two years of judgment and sentencing becoming final); Jones v. State, 602 So.2d 606, 607 (Fla. 1st DCA 1992) (a judgment becomes final when the appellate proceedings have concluded and a court issues mandate). However, the motion does not otherwise comply with the technical requirements of that rule. Thus, this Court cannot treat the motion as one filed pursuant to rule 3.850. See Burchfield v. State, 907 So.2d 614 (Fla. 1st DCA 2005) (court cannot treat motion filed pursuant to rule 3.800(a) as a 3.850 motion, even though it was timely and sworn, where it does not contain the other required allegations of that rule such as whether appeal was filed, the result, and whether prior postconviction motions have been filed). Although facially insufficient if treated as a rule 3.850 motion, the appellant is entitled to one opportunity to amend. See Spera v. State, 971 So.2d 754 (Fla.2007) (trial court must give defendant one opportunity to amend facially deficient claims). Accordingly, we reverse and remand for the trial court to give the appellant an opportunity *980to raise his claims of scoresheet error in a facially sufficient rule 3.850 motion.
REVERSED and REMANDED for further proceedings consistent with this opinion.
PADOVANO, RAY, and MAKAR, JJ., concur.
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Citator
Cited By
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Thomas v. State, 149 So. 3d 159 (Fla. 1st DCA 2014)…ments of that rule. Although facially insufficient, the motion would be timely as a rule 3.850 motion, and the claim is cognizable in a rule 3.850 motion. In such situations, the appellant is entitled to an opportunity to amend. See Kelsey v. State, 97 So. 3d 978 (Fla. 1st DCA 2012) (citing Spera v. State, 971 So. 2d 754 (Fla.2007)). Accordingly, we reverse and remand for the trial court to give the appellant an opportunity to raise his claim of scoresheet error in a facially sufficient rule 3.850 motion. L…
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Brown v. State, 126 So. 3d 1242 (Fla. 5th DCA 2013)…e same sentence “could have been imposed” if a correct scoresheet had been used. We conclude that the trial court should have instead allowed Brown an opportunity to file a rule 3.850 motion raising the error noted by the court. See Kelsey v. State, 97 So. 3d 978, 979-80 (Fla. 1st DCA 2012) (remanding to allow defendant opportunity to raise alleged scoresheet errors in facially sufficient rule 3.850 motion and noting that if defendant’s rule 3.800 motion were treated as a rule 3.850 motion, then the “would h…
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- Brooks v. State, 969 So. 2d 238 (Fla. 2007)
- Barnes v. Sanders, 907 So. 2d 614 (Fla. 3d DCA 2005)
- Jones v. State, 602 So. 2d 606 (Fla. 1st DCA 1992)
- Davis v. State, 602 So. 2d 606 (Fla. 2d DCA 1992)