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

COREY McCLAIN,                         NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D14-3066

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed February 16, 2015.

An appeal from an order of the Circuit Court for Bay County.
Michael C. Overstreet, Judge.

Corey McClain, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Charles R. McCoy, Senior Assistant
Attorney General, Tallahassee, for Appellee.




RAY, J.

      Corey McClain appeals the summary denial of his motion to correct an

illegal sentence, arguing that a scoresheet error caused his sentence to exceed the

maximum that could have been imposed with a corrected scoresheet. To support

his claim, he provided the trial court with portions of the record in a different

criminal case to establish that a prior conviction listed on his guidelines scoresheet
was erroneously classified as a higher level offense, resulting in an increase in his

maximum sentence exposure. The trial court denied the motion, concluding that a

claim of scoresheet miscalculation is not cognizable in a motion pursuant to

Florida Rule of Criminal Procedure 3.800(a) if the error is not apparent from the

face of the scoresheet. For the reasons that follow, we conclude that the trial court

should have dismissed Appellant’s motion as facially insufficient, rather than deny

it on its merits.

       Contrary to the trial court’s position, a claim that a sentencing scoresheet

was incorrectly calculated may be raised at any time pursuant to Rule 3.800(a) as

long as the error is apparent on the face of the record. See Atwood v. State, 765 So.

2d 242, 243 (Fla. 1st DCA 2000) (“If an erroneous scoresheet calculation is

apparent on the face of the record, it is reviewable under rule 3.800(a).”) (quoting

Johnson v. State, 702 So. 2d 247, 248 (Fla. 4th DCA 1997)); Lewis v. State, 719

So. 2d 924, 925 (Fla. 1st DCA 1998) (reversing where the trial court denied a

claim of scoresheet error on the basis that it was not apparent from the face of the

scoresheet rather than considering whether the error was apparent from the face of

the record); but see Hernandez v. State, 698 So. 2d 906, 906 (Fla. 4th DCA 1997)

(“[S]coresheet errors that are not apparent from the face of the scoresheet may

result in an erroneous sentence correctable on direct appeal, but not on a motion

pursuant to rule 3.800(a).”) (quoting Judge v. State, 596 So. 2d 73, 77 (Fla. 2d

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DCA 1991)). Accordingly, under our precedent, the trial court should not have

denied Appellant’s motion for the reason that the alleged scoresheet error was not

apparent on the face of the scoresheet alone.

      Nevertheless, Appellant’s motion was facially insufficient because it failed

to affirmatively allege that the court records of the proceedings in which the

challenged sentence was imposed demonstrate on their face an entitlement to

relief. See Tyson v. State, 852 So. 2d 428, 429 (Fla. 2d DCA 2003) (holding that

Rule 3.800(a) motion “was facially insufficient because it did not ‘affirmatively

allege[] that the court records [in the instant proceeding] demonstrate on their face

an entitlement to th[e] relief’ sought.”) (quoting Fla. R. Crim. P. 3.800(a)); cf.

McCullough v. State, 777 So. 2d 1091, 1091-92 (Fla. 2d DCA 2001) (holding that

Rule 3.800(a) motion was facially sufficient because the motion “alleged that the

error could be corrected based on record evidence”). Appellant’s exclusive reliance

on record excerpts from a different criminal case to substantiate his claim of

scoresheet error renders his claim beyond the scope of sentencing errors

correctable under Rule 3.800(a). To the extent that there may be records in the

instant proceedings that demonstrate on their face an entitlement to relief, it was

and remains Appellant’s burden – not the trial court’s – to specifically identify

those records. See Johnson v. State, 60 So. 3d 1045, 1049 (Fla. 2011) (“Under rule

3.800(a), ‘the burden [is on] the petitioner to demonstrate an entitlement to relief

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on the face of the record.’ ”) (quoting Williams v. State, 957 So. 2d 600, 602 (Fla.

2007)).

      We, therefore, reverse the trial court’s order and remand for entry of an

order of dismissal without prejudice to any right Appellant may have to file a

facially sufficient Rule 3.800(a) motion or a timely and facially sufficient motion

pursuant to Rule 3.850. See Livingston v. State, 944 So. 2d 1254, 1255 (Fla. 2d

DCA 2006).

MAKAR and BILBREY, JJ., CONCUR.




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