RODRIGUEZ v. STATE (2020)

Jose M. Rodriguez appeals the trial court's order denying his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm in part and reverse in part.

Rodriguez argues that his dual convictions for attempted robbery and aggravated assault violate double jeopardy principles. “A double jeopardy argument is a challenge to the judgment, not the sentence. It also raises factual issues underlying the judgment, which if the double jeopardy argument has merit, cannot be determined on the face of the judgment. Thus, Rule 3.800(a) does not provide an appropriate remedy.” Smith v. State, 886 So. 2d 336, 337 (Fla. 5th DCA 2004). Accordingly, we affirm the trial court's denial of Rodriguez's double jeopardy claim.

Rodriguez next asserts that he was improperly sentenced to ten years in prison with a ten-year minimum mandatory for his aggravated assault with a deadly weapon conviction. He is correct. When this crime occurred in 2012, aggravated assault with a firearm required the imposition of a three-year minimum mandatory prison term. See § 775.087(2)(a), Fla. Stat. (2012). However, aggravated assault with a deadly weapon (other than a firearm) did not have a minimum mandatory sentence. See Smith v. State, 639 So. 2d 207 (Fla. 5th DCA 1994). The maximum sentence for this charge will also need to be recalculated with a corrected scoresheet.  ¹

For these reasons, we affirm in part, reverse in part, and remand for further action consistent with this opinion.

AFFIRMED in part; REVERSED in part; and REMANDED.

FOOTNOTES

1.   Both the plea form and judgment state that Rodriguez pled guilty to aggravated assault with a deadly weapon. However, the criminal punishment code scoresheet and the trial court's order denying Rodriguez's motion to correct illegal sentence indicate that he pled guilty to aggravated assault with a firearm. On remand, this inconsistency should be rectified.

PER CURIAM.

ORFINGER, COHEN and GROSSHANS, JJ., concur.