Rodriguez v. State
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT January Term 2009 ANTHONY R. RODRIGUEZ, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D08-4111 [February 11, 2009] PER CURIAM. 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 a n 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 o n th e scoresheet should b e resolve d 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. * * * Appeal of order denying rule 3.800 motion from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Larry Schack, Judge; L.T. Case No. 562006CF005039A. Anthony R. Rodriguez, Perry, pro se. No appearance required for appellee. Not final until disposition of timely filed motion for rehearing.
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