Opinion
No. 1D20-1414
11-03-2021
Anthony MOORE, Appellant, v. STATE of Florida, Appellee.
Anthony Moore, pro se, Appellant. Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
Anthony Moore, pro se, Appellant.
Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee.
Per Curiam.
Moore challenges the denial of two motions to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court denied Moore's claims, finding that they were not cognizable under rule 3.800(a). We reverse the trial court's order on Moore's claims for jail credit and on the claims that the sentencing scoresheet included offenses that were more than ten years old, but we affirm the trial court's order on all other grounds without comment.
In ground three of his motion, Moore alleged an entitlement to jail credit for a period of incarceration in New York awaiting transfer to Florida for the underlying criminal matter. Claims for out-of-state jail credit may be raised pursuant to Florida Rule of Criminal Procedure 3.850. Cf. West v. State , 22 So. 3d 797, 798 (Fla. 1st DCA 2009) ; Garnett v. State , 957 So. 2d 32, 33 (Fla. 2d DCA 2007) (en banc). As Moore filed both motions within two years of the judgment and sentences becoming final, Moore should have been allowed a chance to amend the pleading to file a facially sufficient motion under rule 3.850. See Spera v. State , 971 So. 2d 754, 758–59 (Fla. 2007) (holding that a defendant should be given an opportunity to amend a timely but insufficient rule 3.850 motion if he can do so in good faith); Bryant v. State , 901 So. 2d 810, 818 (Fla. 2005) (holding that when an initial motion is stricken with leave to amend, a subsequent amended motion relates back to the date of the original filing).
Similarly, Moore's tenth claim alleged an entitlement to jail credit. However, this claim is facially insufficient as it is not discernable from the face of the pleading whether this is a restatement of ground three or a separate claim that Moore was entitled to in-state jail credit. Presuming that it separately claims entitlement to in-state jail credit, such claims must be brought pursuant to Florida Rule of Criminal Procedure 3.801 within one year of when the judgment and sentence become final. See Fla. R. Crim. P. 3.801. Rule 3.801(e) incorporates Florida Rule of Criminal Procedure 3.850(f) by reference, providing that a trial court should provide sixty days to amend a timely but insufficient motion. Because the facially insufficient motions would have been timely if filed pursuant to rule 3.801, the trial court should have provided Moore with an opportunity to amend the claim.
Moore's fifth and twelfth claims claim that the sentencing scoresheet improperly included prior offenses that were more than ten years old. See Fla. R. Crim. P. 3.704(d)(14)(A). It is not apparent from the face of the record when Moore's prior convictions occurred, nor when Moore was released on those convictions. As such, the record does not conclusively refute Moore's claim. When a movant raises a claim of scoresheet error within two years of the judgment and sentence, a trial court is required to determine whether or not the same sentence would have been imposed with a corrected scoresheet, unless the record conclusively refutes the Appellant's claim. See Brooks v. State , 969 So. 2d 238, 243 n.8 (Fla. 2007) (holding that when a defendant raises a claim of scoresheet error in a rule 3.800(a) motion that is filed within the two-year time period for filing a rule 3.850 motion, the would-have-been-imposed test applies). Moore is entitled to an opportunity to amend and bring the claim under rule 3.850. See id. at 242 ; Thomas v. State , 149 So. 3d 159, 160 (Fla. 1st DCA 2014).
Thus, we reverse on Moore's jail credit claims and scoresheet claim, but affirm as to all others with instructions that the trial court enter a non-final order striking those claims and allowing Moore sixty days to file a facially sufficient rule 3.850 motion or rule 3.801 motion, or both, as appropriate.
AFFIRMED in part, REVERSED in part, and REMANDED with instructions.
Winokur, Nordby, and Tanenbaum, JJ., concur.