Morris v. State
Morris v. State
Opinion of the Court
This appeal is from the summary denial of appellant’s motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. He alleges that he received an improper sentence following his conviction for trafficking in cannabis, because of incompetent advice of counsel. We affirm.
Appellant has failed to detail facts sufficient to make a showing of prejudice, an essential element of a claim for post-conviction relief. The basis of appellant’s claim of ineffective assistance of counsel is the allegation that his attorney was not knowledgeable about sentencing guidelines and thus made an uninformed decision to waive the guidelines sentence. Appellant states that he was prejudiced by his attorney’s decision because the non-guidelines sentence
It is a matter of common knowledge that sentences imposed before the adoption of the guidelines did not reflect the actual time of incarceration because of parole. See § 947.16, Fla.Stat. (1985).
This case is distinguishable from Hendrix v. State, 491 So.2d 1172 (Fla. 5th DCA 1986) because in Hendrix the appellant included in the motion those allegations which are missing here, and affirmatively stated his election to be sentenced under the guidelines. The vague and indefinite allegations in the petition sub judice do not make a prima facie showing of ineffective assistance of counsel under the principles announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) or Downs v. State, 453 So.2d 1102 (Fla. 1984)
AFFIRMED.
.The offense for which appellant was convicted was trafficking in cannabis, and was committed before the effective date of the guidelines, although sentencing occurred after the guidelines took effect. Thus defendant had the option to select sentencing under the guidelines. § 921.-001(4)(a), Fla.Stat. (1985). From other exhibits attached to the motion, it appears that section 893.135(l)(a)l, Florida Statutes (1983) requiring a mandatory minimum prison sentence of three years plus a 525,000 fine would apply, whether or not appellant was sentenced under the guidelines.
. We presume that the defendant knows what the presumptive sentence was, because he is familiar with the scoresheet and what it disclosed.
. One of the stated principles embodied in the sentencing guidelines is the following:
The sentence imposed by the sentencing judge should reflect the length of time to be served,*21 shortened only by the application of gain time.
Fla.R.Crim.P. 3.701 b.5.
Dissenting Opinion
dissenting.
In my view, the trial court erred in denying Morris’ motion for post-judgment relief pursuant to Florida Rule of Criminal Procedure 3.850 without either conducting an evidentiary hearing on the issue of ineffective assistance of counsel at sentencing, or attaching portions of the record which conclusively refute Morris’ allegations.
Morris alleged he received an improper sentence because of incompetent advice of counsel. His attorney opted to have him sentenced under the pre-guidelines law.
The sentencing decision was made at a time when the guidelines were relatively new. Morris’ two defense counsel had practically no knowledge about the guidelines. The quoted record attached to the motion indicates defense counsel confused the sentencing guidelines with waiving a presentence investigation. Morris alleged his defense counsel made no effort to advise him about their impact on sentencing, and that they would admit this at a hearing. Further, although there was a brief discussion about waiver of the guidelines in the attached record, it does not reveal that appellant was advised by anyone that he could elect sentencing under them.
As a result of this ill-advised election, Morris received a twenty-year sentence and a $25,000.00 fine for trafficking.
The First District has held that where an appellant alleges counsel failed to advise him of his right to elect guideline sentencing, a facially sufficient allegation of ineffective assistance of counsel exists.
It is also in conflict with a decision from this court in which we held that a petition alleging a defendant’s counsel waived the application of the sentencing guidelines without advising the defendant of his options was facially sufficient to require a hearing on the issue of ineffective assistance of counsel. Hendrix v. State, 491 So.2d 1172 (Fla. 5th DCA 1986). The only difference between Hendrix and this case is that the appellant in Hendrix specified the applicable sentencing range under the guidelines. Although that would have been preferable in this case, I do not think it is a material defect.
Based on Morris’ allegations, I think the trial court should either conduct an eviden-tiary hearing to determine competency of counsel at sentencing and prejudice, if any, to appellant;
. Fla.R.Crim.P. 3.701.
. In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848, 849 (Fla. 1983); the sentencing guidelines will be effective for all offenses committed after October 1, 1983, and affirmatively selected by the defendant for sentences imposed after that date for crimes occurring prior thereto.
. THE COURT: Well, you have not affirmatively requested to be sentenced under the guidelines, so I presume you’re not being sentenced under the guidelines.
MR. WARREN: All right. We will waive the guidelines then.
. § 893.135, Fla.Stat. (1981).
. Fla.R.Crim.P. 3.701.b.6.
. Wright v. State, 491 So.2d 1100 (Fla. 1st DCA 1986).
. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bucherie, 468 So.2d 229 (Fla. 1985); Downs v. State, 453 So.2d 1102 (Fla. 1984).
. Wright v. State, 491 So.2d 1100 (Fla. 1st DCA 1986); Simpson v. State, 479 So.2d 314 (Fla. 5th DCA 1985); Rogers v. State, 467 So.2d 819 (Fla. 5th DCA 1985); and Fla.R.Crim.P. 3.850.
Reference
- Full Case Name
- Stephen Mario MORRIS v. STATE of Florida
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- 4 cases
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- Published