Toler v. State

This is an appeal from an order of the trial court denying the defendant’s Fla.R. Crim.P. 3.850 motion without an evidentia-ry hearing. We reverse and remand for an evidentiary hearing.

The defendant was sentenced after the October 1, 1983 effective date of sentencing guidelines for an offense which was committed prior to that date. His motion alleged that his decision not to be sentenced under the guidelines was based upon his attorney's erroneous advice that the guidelines scoresheet, which had been prepared and shown to him prior to sentencing, called for a sentence of 9-12 years. He also alleged that his attorney told him that he would be given the upper range of 12 years with no possibility of parole if he elected to be sentenced under the guidelines. He claimed that he decided to be sentenced under the prior law since he knew that the maximum sentence that he could receive for his offense, burglary of a dwelling, would be 15 years and that the law pertaining to parole would be applicable to an “old-law” sentence. Accordingly, he was sentenced under the old law to the maximum term of 15 years.

The defendant’s motion further alleged that he later discovered that the scoresheet was erroneous by reason of improper scoring in certain material respects which he described in his motion. Absent the errors, the guidelines range, according to the defendant, would have been 3V2 to 4V2 years. He alleged he would have elected to be sentenced under the guidelines had he not been erroneously informed by his attorney regarding the scoresheet. He claims entitlement to relief on the grounds of ineffective assistance of counsel.

The portions of the record attached to the trial court’s order do not refute the defendant’s allegations. The defendant is entitled to an evidentiary hearing. We agree with our sister court’s decision in the strikingly similar case of Brown v. State, 480 So.2d 119 (Fla. 3d DCA 1985).

Reversed and Remanded for further proceedings consistent with this opinion.

MILLS and WIGGINTON, JJ., concur.