Florida District Courts of Appeal, 2009

Rodriguez v. State

Rodriguez v. State
Florida District Courts of Appeal · Decided February 11, 2009 · Warner, Polen
1 So. 3d 1255; 2009 Fla. App. LEXIS 1117; 2009 WL 321640 (Southern Reporter, Third Series)

Rodriguez v. State

Opinion

PER CURIAM.

We affirm the order denying appellant’s Florida Rule of Criminal Procedure Rule 3.800(a) motion without prejudice for appellant to raise his claim in a properly sworn and legally sufficient rule 3.850 motion if appellant has not already filed such a motion. Appellant has not demonstrated that his claim that a prior grand theft conviction should not have been included on his scoresheet can be determined from the face of the record. Tyson v. State, 852 So.2d 428 (Fla. 2d DCA 2003) (explaining that generally a claim of this type may not be raised in a rule 3.800(a) motion because it requires an evidentiary determination). Likewise, the question of whether the trial court “would have” imposed a 24-month sentence if the 1.6 points scored for the prior grand theft were not included on the scoresheet should be resolved in a rule 3.850 motion. State v. Anderson, 905 So.2d 111, 112 (Fla. 2005). See Brooks v. State, 969 So.2d 238, 243 n. 8 (Fla. 2007).

WARNER, POLEN and MAY, JJ., concur.

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