Lomont v. State, 87-39

Decision Date08 May 1987
Docket NumberNo. 87-39,87-39
Citation12 Fla. L. Weekly 1205,506 So.2d 1141
Parties12 Fla. L. Weekly 1205 Anthony LOMONT, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

DANAHY, Chief Judge.

Anthony Lomont appeals the summary denial of two motions for postconviction relief.

The first motion alleged ineffective assistance of counsel. The trial court ruled that this motion was insufficient on its face. We agree.

The second motion, filed as an addendum to the first, questions the correctness of Lomont's guideline scoresheet computation. His present 5-year sentence is based in part upon three prior felony convictions, for which Lomont received sixty-three points plus fifteen additional points under the Category 5 "multiplier." See Fla.R.Crim.P. 3.988(e). In his motion, Lomont now claims that he has only one prior felony conviction.

The trial court held that this matter should have been raised at sentencing or on direct appeal and, therefore, may not be raised in a motion for postconviction relief. We believe this conclusion is correct notwithstanding the recent supreme court opinions in State v. Chaplin, 490 So.2d 52 (Fla.1986), and State v. Whitfield, 487 So.2d 1045 (Fla.1986). In Whitfield the supreme court amended rule 3.800(a), Florida Rules of Criminal Procedure, to permit a court to correct guideline scoresheet errors at any time. However, as pointed out in Dailey v. State, 488 So.2d 532 (Fla.1986), the scoresheet error in Whitfield was readily apparent from the face of the record. Since Whitfield had been convicted of aggravated assault, it was incorrect as a matter of law to add points for "victim injury" because injury is not an element of that offense. Fla.R.Crim.P. 3.701(d)(7). Similarly, Chaplin involved a technical computation error, the scoring of "assault with intent to commit robbery" as a "prior Category 3 [robbery] offense." On the other hand, where the error complained of would require an evidentiary determination, we believe the rule change announced in Whitfield is inapplicable.

In the present case, had Lomont objected to the scoresheet at the time of sentencing, it would have been necessary for the trial court to require the state to substantiate any hearsay allegations regarding Lomont's record, and a failure to do so could have been raised on appeal. Delaine v. State, 486 So.2d 39 (Fla. 2d DCA 1986). Alternatively, had Lomont advised counsel of the error, and had counsel failed to make an objection, the...

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39 cases
  • Forehand v. State, BT-110
    • United States
    • Florida District Court of Appeals
    • April 7, 1988
    ...and his claim that he was not under legal constraint presented factual matters which were not clear from the record); Lomont v. State, 506 So.2d 1141 (Fla. 2d DCA 1987) (defendant's claim that he had only one prior felony conviction, rather than the three prior felony convictions referenced......
  • Judge v. State
    • United States
    • Florida District Court of Appeals
    • September 6, 1991
    ...convinces me that we should not look behind the face of the record to determine whether such a sentence is illegal. Cf. Lomont v. State, 506 So.2d 1141 (Fla. 2d DCA 1987) (defendant foreclosed on motion for postconviction relief from raising scoresheet calculation error not apparent from fa......
  • Huffman v. State
    • United States
    • Florida District Court of Appeals
    • June 3, 2016
    ...3.800(a) because they involved questions of disputed fact. Huffman v. State, 611 So.2d 2, 4 (Fla. 2d DCA 1992). (citing Lomont v. State, 506 So.2d 1141 (Fla. 2d DCA 1987) ).4 This court also determined, based on the record before it, that the alleged errors were harmless beyond a reasonable......
  • Stewart v. State, s. BO-436
    • United States
    • Florida District Court of Appeals
    • July 21, 1987
    ...complained of would require an evidentiary determination ... the rule change announced in Whitfield is inapplicable." Lomont v. State, 506 So.2d 1141 (Fla. 2d DCA 1987). Thus, in Lomont, wherein by 3.850 motion the defendant claimed that he was improperly scored for three prior felony convi......
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