West v. State, 2D00-3179.
| Decision Date | 10 July 2002 |
| Docket Number | No. 2D00-3179.,2D00-3179. |
| Citation | 823 So.2d 174 |
| Parties | Brian WEST, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Erica M. Raffel, Assistant Attorney General, Tampa, for Appellee.
In 1996, Brian West pleaded guilty to one count of lewd and lascivious activity.1 The court placed him on 60 months' probation. He eventually violated that probation and was sentenced to 62.5 months' imprisonment. In this appeal, he challenges the accuracy of the scoresheet prepared when he was first placed on probation and subsequently used to determine his sentence at the revocation hearing. We reverse and remand for a new sentencing hearing.
At sentencing, and in a subsequently filed motion to correct a sentencing error under Florida Rule of Criminal Procedure 3.800(b), West made two arguments. First, he claimed that some of his prior record was improperly scored. Second, he asserted that he should not have been assessed 40 points for sexual penetration because his plea agreement did not contemplate these points. He contended he could only be assessed 18 points for sexual contact. The State filed a corrected scoresheet concerning West's previous crimes, which resulted in a range of incarceration between 58.95 months and 98.25 months, rather than the previously-calculated range of 62.5 months to 104.25 months. The circuit court denied West's 3.800(b) motion and did not resentence him pursuant to the corrected point total. Finding no error in the scoring of West's prior convictions, we affirm on that issue without further discussion. But we reverse and remand for further proceedings on his challenge to the points scored for sexual penetration.
Procedurally, West was permitted to complain about the inclusion of these points on his original scoresheet at his sentencing for a violation of probation. See Wright v. State, 707 So.2d 385 (Fla. 2d DCA 1998)
. He attached to his 3.800(b) motion a copy of his plea agreement, which did not mention sexual penetration points. The information filed against him charged lewd and lascivious activity based on "penetration and/or union" with the victim's vagina. In its response to West's motion, the State asserted that he did not object to the factual basis recited at his plea hearing. However, because our record...
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Stubbs v. State, 2D05-4864.
...at the original sentencing or on direct appeal." Matton v. State, 872 So.2d 308, 312 (Fla. 2d DCA 2004); see also West v. State, 823 So.2d 174, 174 (Fla. 2d DCA 2002); Spell v. State, 731 So.2d 9, 10 (Fla. 2d DCA 1999); Bogan v. State, 725 So.2d 1216, 1217 (Fla. 2d DCA 1999). This rule appl......
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Carter v. State
...State concedes that penetration points are not appropriate under the facts as alleged in the information. In reliance on West v. State, 823 So.2d 174 (Fla. 2d DCA 2002), it urges, however, that because the plea transcript is not part of the record, we should remand this cause to the trial c......