Summary
holding that a scoresheet error that cannot be determined “from the face of the record” may be raised as a claim of ineffective assistance of trial counsel pursuant to rule 3.850
Summary of this case from Butdorf v. StateOpinion
No. 2D02-50.
April 26, 2002.
Appeal pursuant to Fla.R.App.P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Jack Espinosa, Jr., Judge.
Elias Soto appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Soto alleges that certain scored charges on his scoresheet were duplicative of other charges on the same scoresheet. Soto was charged by information with one count of trafficking, one count of delivery of heroin, and one count of possession of heroin in case number 99-01919. He was then charged by amended information with one count of trafficking, one count of delivery of heroin, and one count of possession of heroin in case number 99-06973. Soto claims that the charges in the amended information are duplicative of the charges in the original information. However, it cannot be determined from the face of the record whether Soto is correct. Therefore, this claim cannot be raised in a motion filed pursuant to rule 3.800. See Lomont v. State, 506 So.2d 1141 (Fla. 2d DCA 1987).
It is possible that the claim may be raised as a claim of ineffective assistance of trial counsel pursuant to rule 3.850. Id. at 1142. Soto's motion, while timely as a rule 3.850 motion, could not be treated as such because it was not sworn. We, therefore, affirm the order of the trial court without prejudice to Soto's right to raise this issue in a timely, properly sworn rule 3.850 motion, if he is able to do so.
Affirmed.
SILBERMAN and COVINGTON, JJ., Concur.