Massalene v. State

524 So. 2d 1122, 13 Fla. L. Weekly 1105, 1988 Fla. App. LEXIS 1962, 1988 WL 47239

Opinion

NIMMONS, Judge.

Appellant appeals from his conviction and sentence for trafficking in cocaine. We affirm the conviction but reverse the sentence and remand for a new sentencing hearing.

At the sentencing hearing, counsel for the defendant challenged a July 1978 grand larceny conviction which appeared on the presentence investigation report and was scored as a prior conviction on the sentencing guidelines, scoresheet. The scoring of such offense placed the defendant in a higher sentence range (cell) in the score-sheet. Counsel informed the court that the defendant claimed that he had never been convicted of such offense and requested a fingerprint check. No effort was made to corroborate such offense. In fact, the trial judge’s response was that the appropriate relief to vindicate such a claim would be a Rule 3.850 post conviction motion. This was error. Stacey v. State, 483 So.2d 542 (Fla. 1st DCA 1986); Davis v. State, 463 So.2d 398 (Fla. 1st DCA 1985); Olivera v. State, 494 So.2d 298 (Fla. 1st DCA 1986); Camp v. State, 501 So.2d 81 (Fla. 1st DCA 1987).

We have reviewed the remaining claims urged by the defendant and find them to be without merit.

Judgment affirmed, sentence reversed, and cause remanded for resentencing.

SMITH, C.J., and BOOTH, JJ., concur.