Soto v. State

District Court of Appeal of Florida

Soto v. State

814 So. 2d 533, 2002 Fla. App. LEXIS 5507, 2002 WL 727158

CourtDistrict Court of Appeal of Florida

DecidedApril 26, 2002

DocketNo. 2D02-50

StatusPublished

Cited by1 cases

This text of 814 So. 2d 533 (Soto v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Soto v. State, 814 So. 2d 533, 2002 Fla. App. LEXIS 5507, 2002 WL 727158 (Fla. Ct. App. 2002).

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Opinion

SALCINES, 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.

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SALCINES, 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.

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814 So. 2d 533, 2002 Fla. App. LEXIS 5507, 2002 WL 727158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soto-v-state-fladistctapp-2002.

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