        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

                           FRANKLIN SANCHEZ,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D13-3327

                           [September 10, 2014]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Glenn D. Kelley, Judge;
L.T. Case No. 502007CF011246A.

   Franklin Sanchez, Century, pro se.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

                         ON MOTION FOR REHEARING

PER CURIAM.

   We grant appellant’s motion for rehearing, withdraw our previously
issued opinion and substitute the following in its place.

    Franklin Sanchez appeals the summary denial of his rule 3.850 motion
for postconviction relief. We affirm in part and reverse and remand in part.

   Sanchez was convicted of home invasion robbery with a firearm and
was acquitted on a kidnapping charge. He was sentenced to thirty-five
years in prison. In his rule 3.850 motion, he raised multiple claims of
ineffective assistance of counsel, including a claim of failure of counsel to
object to erroneous scoresheet calculations. We address the arguments
made under the latter claim only.

   We first reject the claim of ineffective assistance for failure to object to
the scoresheet’s designation of the home invasion robbery with a firearm
as a life felony. This was erroneous, as is the judgment of conviction
identifying the offense as a life felony, because the offense was a first
degree felony punishable by life. § 812.135(2)(a), Fla. Stat. (2007). It could
not properly have been reclassified to a life felony because the use of a
firearm was an essential element of the offense. § 775.087(1), Fla. Stat.
(2007). See State v. Tripp, 642 So. 2d 728 (Fla. 1994); Ruth v. State, 949
So. 2d 288 (Fla. 1st DCA 2007); Young v. State, 841 So. 2d 697 (Fla. 4th
DCA 2003). However, appellant has not directly challenged the judgment
of conviction under his claims of ineffective assistance of counsel. Further,
insofar as he has claimed ineffective assistance for failure to object to the
scoresheet designation of his conviction as a life felony, the record
demonstrates that this designation had no effect on the amount of points
actually assessed. Home invasion robbery with a firearm is a level ten
offense for which 116 points were properly charged. § 921.0022(3)(j), Fla.
Stat. (2007). Failure to demonstrate prejudice defeats the claim of
ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668
(1984).

   We reverse, however, the trial court’s summary denial of appellant’s
claim of ineffective assistance of counsel for failure to object to scoresheet
error in the assessment of 23 points under the prior record category, based
on a Broward Circuit Court kidnapping conviction. Sanchez alleged that
he was not convicted of that offense due to a negotiated settlement. The
state has failed to show that the same sentencing would have been
imposed notwithstanding the inclusion of these points. See State v.
Anderson, 905 So. 2d 111 (Fla. 2005).

   Accordingly, we reverse the claim addressed above and remand for
either attachment of portions of the record conclusively refuting the claim
addressed above, or an evidentiary hearing. The trial court’s summary
denial of all other claims is affirmed.

   Affirmed in part, reversed in part and remanded.

WARNER, STEVENSON and LEVINE, JJ., concur.

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