                                        IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

RONALD A. THOMAS, JR.,                  NOT FINAL UNTIL TIME EXPIRES TO
                                        FILE MOTION FOR REHEARING AND
      Appellant,                        DISPOSITION THEREOF IF FILED

v.                                      CASE NO. 1D14-1255

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed October 21, 2014.

An appeal from the Circuit Court for Madison County.
Andrew J. Decker, III, Judge.

Ronald A. Thomas, Jr., pro se, Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.




PER CURIAM.

      The appellant challenges the denial of his motion to correct illegal sentence

filed pursuant to Florida Rule of Criminal Procedure 3.800(a). For the reasons

discussed below, we reverse and remand for the trial court to give the appellant an

opportunity to file his claim in a facially sufficient rule 3.850 motion.
         The appellant alleges that one of his prior convictions was scored improperly

on his scoresheet. Because the motion was filed pursuant to rule 3.800(a) and did

not meet the pleading requirements of rule 3.850, the trial court applied the “could-

have-been-imposed” test and denied relief. If treated as a rule 3.850 motion the

appellant may have been entitled to relief 1 under the more lenient “would-have-

been-imposed” test which applies to claims of scoresheet error raised under that

rule. However, if treated as a rule 3.850 motion it is facially insufficient as it is not

sworn and does not otherwise comply with the technical requirements of that rule.

Although facially insufficient, the motion would be timely as a rule 3.850 motion,

and the claim is cognizable in a rule 3.850 motion. In such situations, the appellant

is entitled to an opportunity to amend. See Kelsey v. State, 97 So. 3d 978 (Fla. 1st

DCA 2012) (citing Spera v. State, 971 So. 2d 754 (Fla. 2007)). Accordingly, we

reverse and remand for the trial court to give the appellant an opportunity to raise

his claim of scoresheet error in a facially sufficient rule 3.850 motion.

LEWIS, C.J. and BENTON, J., CONCUR; MARSTILLER, J., DISSENTS WITH
OPINION.




1
    We do not address the merits of appellant’s challenge to his scoresheet.
                                           2
MARSTILLER, J., dissenting.

      I respectfully dissent for I do not believe our decision in Kelsey v. State

supports reversal in this instance. The rule 3.800(a) motion in Kelsey was sworn,

and the postconviction court expressly concluded that, had the claim been raised in

a rule 3.850 motion, resentencing would be required. 97 So. 2d at 979. Neither

circumstance occurred here. The appellant in this case chose a rule 3.800(a)

motion as the vehicle for challenging his sentence. The motion “is not sworn and

does not otherwise comply with the technical requirements of [rule 3.850].” (Maj.

op. at 2.) The lower court correctly applied the “could-have-been-imposed” test to

the appellant’s motion and correctly denied it. Consequently, we should affirm the

order on appeal. We are, after all, an error-correcting court. Reversing the order

and directing the lower court to treat the motion as one filed under rule 3.850

simply because a more lenient test would apply and the appellant may be entitled

to relief under that test is, in my view, inappropriate.




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