       Third District Court of Appeal
                               State of Florida

                         Opinion filed December 3, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D14-805
                            Consolidated: 3D14-948
                          Lower Tribunal No. 12-1849
                              ________________


                              Omar Fernandez,
                                    Appellant,

                                        vs.

                            The State of Florida,
                                    Appellee.



      Appeals under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Fleur J. Lobree, Judge.

     Omar Fernandez, in proper person.

     Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, for appellee.


Before WELLS, EMAS and LOGUE, JJ.

                       ON MOTION FOR REHEARING
      Addressing Appellant’s Motion for Rehearing and “Motion to Notify” filed

in these consolidated appeals from orders denying his motions to withdraw his plea

and to correct an illegal sentence, we grant rehearing, vacate our earlier decision

affirming those orders and substitute this opinion in its stead.

      The gist of Appellant’s motions below is that he agreed to plead guilty and

to a 39.6 month sentence because the trial court, relying on an inaccurately

calculated guidelines scoresheet, represented to him that this was a bottom of the

guidelines sentence. More specifically, Appellant claims (1) that the scoresheet on

which the trial court relied incorrectly scored a prior conviction for simple battery,

a misdemeanor, as an aggravated battery, a second degree felony, which should

have resulted in a bottom of the guidelines sentence of 36.15 months rather than

the 39.6 months represented, and (2) if the guidelines scoresheet had been correctly

calculated he would not have accepted the 39.6 month sentence offered. The trial

court summarily denied these motions.

      While we agree that Appellant has made a sufficient showing that the battery

was improperly calculated, resulting in a “false bottom” of the guidelines and

entitling him to an evidentiary hearing, we do not necessarily agree (nor do we

determine here) that when properly calculated the bottom of the guidelines will be

less than the 39.6 months offered and accepted. We note this issue only because an

Assistant Public Defender, present at the hearing conducted below on these



                                           2
motions, advised the trial court of “a genuine concern that if a new score sheet

were to be filed it would actually be greater than the number – the 39.6 and that

was a concern that I had addressed with [Appellant] prior to the plea.” We

therefore, reverse the orders entered below denying Appellant’s motions to vacate

plea and to correct sentence to conduct a hearing to determine whether the

scoresheet on which the trial court relied was incorrectly calculated and if so,

whether but for the incorrect calculation, Appellant would not have entered into a

plea to the incorrectly calculated bottom of the guidelines scoresheet.1

      Accordingly, the orders on appeal are reversed and this matter remanded for

further proceedings in accordance herewith.




1 Should Appellant prevail on these claims, his plea will be withdrawn, his
judgment and sentence vacated, and a new and accurate guidelines scoresheet shall
be prepared accurately scoring all of Appellant’s prior convictions, and the parties
shall be returned to the same procedural posture as that existing before the current
plea. Nothing in this opinion shall obligate the court below to offer a bottom of the
guidelines sentence should Appellant prevail on his claims, nor shall anything
herein preclude it from offering a plea to any newly-calculated bottom of the
guidelines.

                                          3
