MATHIS v. STATE (1999)

Mathis seeks a belated appeal of the trial court's summary order rendered May 4, 1998, which denied his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a).   He alleges he instructed his attorney to file an appeal but she failed to do so.   The state's response does not address this allegation.   Accordingly, we elect to grant Mathis a belated appeal in this cause, but after considering the merits, we affirm.

In his motion, Mathis claims that the trial court erred in improperly scoring a misdemeanor offense as “prior record” because that offense occurred one month after the robbery offense for which he was being sentenced.   Removal of the additional four points in the score attributable to the misdemeanor offense would be sufficient to drop him to a lower sentencing range.

The trial court denied the motion because the scoring error was not apparent on the face of the scoresheet and “[i]t would be necessary for the court to make factual determinations outside of the record to determine if one of the prior offenses listed on the scoresheet occurred after the primary offense.”   Therefore this issue cannot be addressed in a Rule 3.800(a) context.

We think the trial court ruled correctly.   See, e.g., Mathis v. State, 719 So.2d 348 (Fla. 5th DCA 1998);  Richardson v. State, 705 So.2d 608 (Fla. 5th DCA 1997).   See also Hernandez v. State, 698 So.2d 906 (Fla. 4th DCA 1997);  Judge v. State, 596 So.2d 73 (Fla. 2d DCA 1991), rev. denied, 613 So.2d 5 (Fla.1992).   Compare Johnson v. State, 702 So.2d 247 (Fla. 4th DCA 1997);  Horton v. State, 696 So.2d 460 (Fla. 1st DCA 1997).

Petition for Writ of Habeas Corpus GRANTED.   Decision AFFIRMED.

W. SHARP, J.

PETERSON, J., concurs. DAUKSCH, J., concurs with result only.