Summary
affirming summary denial of rule 3.850 motion where defendant alleged counsel was ineffective for waiving guidelines sentence because his non-guidelines sentence was greater than guidelines sentence because motion did not identify what guidelines sentence would have been or that defendant would have elected guidelines sentence
Summary of this case from Shaw v. StateOpinion
No. 86-324.
July 24, 1986. Rehearing Denied September 3, 1986.
Appeal from the Circuit Court, Orange County, Ted P. Coleman, J.
Craig Stephen Boda, P.A., Daytona Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
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 of 20 years and a $25,000 fine was greater than the applicable presumptive guidelines sentence. Appellant's motion, prepared by counsel, does not include a copy of the guidelines scoresheet which was before the trial court at sentencing, nor does appellant state in the motion what the presumptive guidelines sentence would have been. Appellant does not even allege that he would have selected the guidelines sentence had it been explained to him. The only allegation regarding this salient matter is that the non-guidelines sentence of 20 years and a $25,000 fine was "many years in excess of what the guideline scoresheet range would have provided for his offense." This tells us nothing because we do not know what the presumptive sentence was or how long appellant would actually be incarcerated under the guidelines sentence.
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(1)(a)1, Florida Statutes (1983) requiring a mandatory minimum prison sentence of three years plus a $25,000 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.
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). We also know that even under the guidelines the mandatory minimum sentence must be imposed if the recommended sentence is less than the mandatory sentence. Fla.R. Crim.P. 3.701 d.9; State v. Row, 478 So.2d 430 (Fla. 5th DCA 1985). If, because of parole, a defendant would not be expected to serve more time under a non-guidelines sentence than he would serve under a guidelines sentence without parole, the defendant has not been prejudiced.
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, shortened only by the application of gain time.
Fla.R.Crim.P. 3.701 b.5.
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.
COWART, J., concurs.
SHARP, J., dissents with opinion.
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 offense for which Morris was convicted occurred before the effective date of the guidelines, but he was sentenced after they were effective. Therefore, he could have chosen to be sentenced under the guidelines.
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 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.
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.
As a result of this ill-advised election, Morris received a twenty-year sentence and a $25,000.00 fine for trafficking. In his petition, Morris alleged he received a sentence "many years" in excess of the presumptive sentence, although he does not specify the number or range of departure. This, in my view, is a sufficient allegation of prejudice to require more than a summary denial. Indeed, the trial judge might have departed to the same extent after giving sufficient clear and convincing written reasons, but whether or not the judge would have departed in this case or to what extent is a matter of speculation, based on the record before us.
§ 893.135, Fla. Stat. (1981).
Fla.R.Crim.P. 3.701.b.6.
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. Therefore, this decision is in conflict with our sister court.
Wright v. State, 491 So.2d 1100 (Fla. 1st DCA 1986).
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 evidentiary hearing to determine competency of counsel at sentencing and prejudice, if any, to appellant; or attach a portion of the record which conclusively refutes the allegations of Morris' petition on the issue of competency of counsel at sentencing.
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.