CRUZ v. STATE (2003)

Wayne Cruz appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a).   His motion raised three grounds for relief:  (1) that points for a prior offense of burglary of a dwelling to which he pleaded no contest should not have been included as prior record on his scoresheet;  (2) similarly, that points for a prior grand theft to which he pleaded no contest should not have been included as prior record on his scoresheet;  and (3) that the offense of retaliating against a witness was improperly scored.   We affirm the denial of his motion on the first two grounds but reverse and remand for the circuit court to reconsider its decision on the proper scoring of the primary offense.

Cruz alleges that the primary offense category on his guidelines scoresheet improperly reflected the crime of retaliation against a witness as a first-degree felony rather than as a second-degree felony.   It appears that Cruz is correct.   See § 914.23(2), Fla. Stat. (1991).

The circuit court directed the State to respond to Cruz's motion.   Although the State did respond to several of Cruz's claims, it unfortunately failed to respond specifically to the contention regarding scoring of the primary offense.   In denying relief to Cruz, the circuit court relied upon the State's response and incorporated it by reference into its order.   Thus, the record presents no basis for the court's denial of relief of this claim.

Accordingly, we reverse the order of the circuit court and remand the cause for the circuit court to prepare an amended order that addresses this claim.

Affirmed in part;  reversed in part;  and remanded.

CASANUEVA, Judge.

COVINGTON and WALLACE, JJ., Concur.