Rodriguezv.State

District Court of Appeal of Florida, Fourth DistrictFeb 11, 2009
1 So. 3d 1255 (Fla. Dist. Ct. App. 2009)

No. 4D08-4111.

February 11, 2009.

Appeal from the Circuit Court, Nineteenth Judicial Circuit, St. Lucie County, Larry Schack, J.

Anthony R. Rodriguez, Perry, pro se.

No appearance required for appellee.


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.