CHIEF JUSTICE: THE LAST CASE ON THIS MORNING'SDOCKET IS STATE OF FLOR IDA V ERSUS AND I RSON. VERSU S ANDERSON.

GOOD MORNING . MAY IT PLE ASE THE COURT. MY NAME IS RONALD NAPOLITANO AND I REPR ESENT THE STATE OF FLORIDA IN THIS CASE.

THIS ISN'T A HEGGS CASE , IS IT?

WELL , I THINK IT IS A HEGGS CASE, BECAUSE THE ISSUE STILL HAS TO DO WITH THE UNCONSTITUTIONALITY OF CHAPTER 95.137. 194.137. EXCUSE ME.

ISN'T IT A SENSE OF DIDN'T THEY USE THE RIGHT S CORE SHEET HERE?

THEY USED THE RIGHT S CORE SHEET. THE PROBLEM WAS THAT THEY WERE BASING, THE QUESTION WAS HOW TO SCORE THE ATTEMPTED H URD ATTEMPTED MURDER, AND THEY WERE USING THE 1 995 STATUTE, WHICH WAS WHICH WAS DEC LARED , PART O F NUMEROUS STATUTES THAT WERE DECLARED UNCONSTITUTIONAL IN HEGGS.THIS WAS ONE OF THEM. THIS ONE WAS HOW DO YOU SCORE ATTEMPTS. UNDER THE '95 STATUTE , IT IS TWO LE VELS BELOW. U NDER THE '94 STATUTE , EXCUSE ME, THE '9 5 STATUTE , IT IS - -

WHY DON'T WE AS SUME FOR THIS CASE , THAT IT IS NOT A HEGGS SITUATION.

A DISTINCTION IN THE SENSE

SO THAT WE CAN UNDERSTAND THAT, IF WE ARE TALKING ABOUT A STANDARD SENTENCING SCORE SHEET ERROR , WHICH RULE 3.800 PROVIDES FOR RELIEF, ARE YOU CLAIMING THAT HEGGS CHANGED THE LAW, THAT THOSE , IF IT COULD HAVE MADE A DIFFERENCE , THAT I T SHOULD BE

I SUPPORT THE RATIONALE THAT THE FIRST DIST RICT ADOPTED IN HUMMEL, AND IN H UMMEL , IT SAYS THAT THESUPREME COURT

THIS CURE. YES. THE FLORIDA SUPREME COURT ESTABLISHED A NEW STANDARD REGARDING SCORE SHEET ER RORS, AND THAT IS

WE DID THIS SUPPOSED LY IN HEGGS , WHICH DEALT WITH

WE DID THIS IN HEGGS .

BEFORE HEGGS , WAS , OUT THERE , WE HAD 3 .800 FOR ALONG TIME. H OW WERE TRIAL COURTS HANDLING IT ? SCORE SHEETS.

BEFORE HEGGS, THE COURTS LOOKED AT IT AS A QUESTION OF COULD, EXCUSE ME, WOULDTHE COURT HAVE IMP OSED THIS SAME SENT ENCE , REGARDLESS OF THE SCORE SHEET ERR OR.

IS THAT THE SAME STANDARD, WHETHER I T IS ON DI RECT APPEAL OR IT IS OPPOSE THE CONVICTION?

WELL , THAT IS WHERE I TAKE EXCEPTION. THE WOULD -HAVE-BEEN IMPO SED , IN EF FECT HARMLESS ERROR ARGUMENT, THE STATE WOULDHAVE TO SHOW HARMLESS ERROR, IS FINE WHEN YOU ARE , AND I A GREE BASED UPON GOODWIN, THAT THAT HARMLESS ERROR ARGUMENT THAT THE STATEWOULD HAVE TO OVERCOME , IS FINE WHEN YOU ARE DE ALING WITH DIRECT APPEAL , BUT NOTWHEN YOU ARE DEALING WITH COLLATERAL IS SUES. WHEN YOU COME DOWN TO THE COLLATERAL QUESTION OF RAISING IT IN A POSTCONVICTION ACTION, EITHER IN A 3. 800 OR IN A 3.850 MOTION , YOU HAVE A DIFFERENT STANDARD.

WHY SHOULD THERE BE A DIFFERENT STANDARD, I F THERULE EXPRE SSLY PROVIDES FOR THE CORREC TION OF THIS KIND OF MISTAKE? THAT IS THAT WE ARE DEALING , REALLY, W ITH AN EXCE PTION AL SITUATION HERE , AND I WOULD LIKE YOU TO ADDRESS , FOR INSTANCE , JU DGE ALTENBERND 'S COM MENT THAT , IF WE SHOULD CHANGE THE STANDARD UNDER THAT, THAT W E JUST AS WELL DO AWAY WITH THAT PROVISION IN THE RULE NOW THAT AL LOWS TO CA TCH THOSE ERRORS , EVEN IN POSTCONVICTION?

THE RULE WAS ESTABLISHEDIN THE WOOD FI ELD CASE , AND WHAT WE WERE DEALING WITH IN THE WOOD FIELD CASE WAS , AS A RESU LT OF THESE SCORE SHEET ERROR , THE SENTENCE WAS A DE FACTO ILLEGAL SENTENCE. YOU COULDN'T IMPOSE THAT SENTENCE UNDER THE CORRECTED SCORE SHEET.

BUT AREN'T WE , R EALLY , IF WE ARE TAKING AS A PREDICATE , FOR A SENTEN CING DECISION , OKAY, A MI STAKE , SHOULDN'T THE PERS ON THAT IMPOSES THAT SENTENCING DECISION , NOW , HAVE AN OPPORT UNITY TO SAY , HERE IS WHAT I WOULD D O , IF MY MISTAKE IS CORRECTED. AND NOW WE GET IT RIGHT. I F IT T URNS O UT TO BE THE SAME , THEN THAT IS , SO BE IT , BUT WE DON'T WA NT TO HAVE THE SENTENCES THAT WERE I MPOSED, B ASED ON MIST AKES , AND , OF COURSE, THESE MISTAKES CAN BE LI TTLE MISTAKES THAT EVERYBODY WOULD SORT OF A GREE , W ELL , HOW COULD THAT POSSIBLY MAKEA DIFFERENCE , TO MISTAKES THAT, BUT SHOULDN'T THE ONE THAT DECI DES THAT , BE HOPEFULLY , THE SAME TRIAL COURT THAT IMPOSED THE SAME , OR IMPOSED THE SENTENCE, SO THAT THEY CAN MAKE THAT JUDGMENT ABOUT IT , BUT IT SEEMS THAT HEGGS , BECAUSE WE KNEW WE WERE GOING TO HAVE L ARGE NUMBERS AND EVER YTHING , WE SORT OF CUT THEM OFF AT THE PASS , AND, REALLY , HAD A V ERY EFFICIENT RULE , BECAUSEYOU COULD JUST LOOK AND SAY IF IT WAS POSSIBLE FOR THE SENTENCE TO BE IMPOSED UNDER THE GUIDELINES NOW, THAT WOULD APPLY , THEN WE ARE GOING TO LEAVE IT ALONE , ANDTHAT TOOK CARE OF A WH OLE C LASS OF CASES. THERE IS NO IND ICATION IN HEGGS , THAT WE INTENDED TO INFLUENCE THE RULE THAT HAD THIS EXPRESS PROVISION. THAT IS WHAT I AM CONCERNED ABOUT , IS THAT WE ARE TAKING SOMETHING.YOU KNOW.WE HAVE HAD CASES FROM TIMETO TIME WITH REFERENCE TO COMPUTING TIME SERVED IN PRISON AND ALL OF THOSE, AND WE TRY TO DEAL WITH THAT CLASS OF CASES , AND THAT IS , I BELIEVE, WHAT WE WERE DOING IN HEGGS , SO I AM CONCERNED ABOUT BRINGING THAT OVER TO SOMETHING WHERE WE ADOPTE D A PARTIC ULAR RULE .

I DON'T , THE DEFENDANT HAS REME DIES HERE. HE CAN RA ISE IT ON DIRECT APPEAL BY FILING A 3.8 00- B -1 OR 2 MOTION. HE CAN, ALSO , RAISE IT POSTCONVICTION. HE CAN RAISE THIS ERROR IN SEVERAL WA YS .

HE CAN RAISE IT ON DIRECT APPEAL. HE CAN, A LSO , S INK RELINQUISHMENT AND RAISE IT DURING THE PENDENCY.

CORRECT.

IF IT WASN'T FIRST RAISED BELOW.

HE HAS TO RAISE IT BELOW , BECAUSE OBVIOUSLY YOU CANNOT RAISE SENTENCING ISS UES , E VEN FUNDAM ENTAL ISSUES , ON DIRECT APPEAL IF IT WASN'T PRESERVED IN THE TRIAL COURT .

3.800-B, DID WE AMEND TO ALLOW FOR RELINQUISH MENT AND TO BE FILED IN THE TRIALCOURT , A FTER WE HAD 3 00-A , IMEAN 800-A , TO SAY THAT SCORE SHEET ERRORS WERE ONE OF THE THINGS THAT COULD BE

30 0-A WAS AMENDED MA NY YEARS BEFORE, IN 1986, I BELIEVE , IN THE WHITFIELD C ASE.

IT SEEMS TO ME , IN READING JUDGE ALTENBERND 'S CONCURRENCE , THAT WHAT YOU MAY BE ADVOCATING FOR ISTHAT THE POLICY THAT PROVIDES THAT A LEGAL SENTENCE THAT IL LEGAL SENTENCES CAN BE CORRECTED ANYTIME, THAT MAYBE THERESHOULD BE A DIFFERENT STANDARD FOR SCORE SHEET ERRORS. MAYBE THEY SHOULDN'T HAVE UNLIMITED TIME , BUT GIVENTHAT THE RULE EXPRESSLY PUTS THESE CAT GOERS OF ERROR INTO A SEPARATE PLACE , SOMETHING THAT CAN BE RAISED AT ANY TIME, I AM HAVING TROUBLE UNDERSTANDING WHY THE STANDARD SHOULD BE DIFFERENT , I F THE LAW YER HADN'T CAU GHT IT EARLIER , WHY ISN'T I T GOING BACK TOTHE ORIGINAL JUDGE, TO LOOK AT IT , TO SEE WHETHER HE OR SHE WOULD HAVE IMPOSED A DIFFERENT SENTENCE, THE APPROPRIATE THING TO DO? AND IF THERE IS A ISSUE ABOUT SHOULD THERE BE A DEADLINE FOR THESE KINDS OF THINGS , WE LO OK AT THAT PROSPECTIVE LY AS FAR AS A RULE CHANGE , BECAUSE I HAVE ALWAYS THOUGHT THAT THOSE TYPES OF ERRORS SHOULD HAVE A TIME LIMIT ON THEM.

I AM TRYING T O ADDRESSTHAT. THE REMEDIES ARE ALREADY THERE.IF YOU DON'T RAISE IT ON DIRECT APPEAL, YOU HAVE SEVERAL OTHER WAYS OF RAISING THIS MATTER. YOU CAN RAISE IT IN A 3.800-C MOTION, WITHIN 60 D AYS AFTER THE MANDATE ON DIRECT APPEAL OR SUBSEQUENT MANDATES, IF IT GOES HI GHER.

I KN OW YOU CAN RAISE IT, BUT THE POIN T IS THAT RULE 3 .800-A SPECIFICALLY AL LOWS THIS ONE TYPE OF ERROR TO B E RAISED AT ANY TIME , NOT WITH A RESTRI CTIVE STANDARD BUTWITH THE INTENT THAT , IF, AS JUSTICE AN STEAD SAID , THAT WE WANT TO HAVE CORRECT SCORE SHEETS, AND IF WE DON'T HAVE THEM , THEN WE CAN'T HAVE RELIANCE THAT THE SENTENCING DECISION WAS CORRECT .

BUT THE 3.800-A, WHEN THEY ADDED THAT IN ADDITION TO THE SENTENCE BEING ILLEGAL , TO CORRECT INACCURACIES IN THE SCORE SHEET , THE COURT , THIS COURT , ADDED THAT , IN THE WHIT FIELD CASE. IN THE WHITFIELD CASE , THE REASON THAT T HEY ADDED IT , WAS BECAUSE, AS A RESULT OF THAT SCORE SHEET ERROR , THAT SENTENCE WAS A DE FACTO ILLEGAL SENTENCE , IN EFFECT. IF A CORRECTED SCORE SHEET WERE AVAILABLE, THAT SENTENCE COULD NOT BE I MPOSED . ABS A DEPART URE.

WHY WOULD WE HAVE NEEDED, WHY WOULD WE HAVE NEEDED TO A MEND THE RULE, IF IT WAS ALREADY COVERED BY IT BEING AN ILLEGAL SENTENCE?

BECAUSE WE ARE DEALING WITH IT IN 19 86. WE WEREN'T DEALING WITH THESE C ELLS AND 25 PERCENTUP AND DO WN AND WE WEREN'T DEALING WITH THE CRIMINAL PUNISHMENT CO DE.

MY QUESTION WAS, THEN , MAYBE IT SEEMS THE RULE NEEDS TO BE AMENDED , BUTGIVEN THE CURRENT STATE OF THE LAW , YOU HAVE AS SERTED THAT HEGGS CHANGED THE LAW F OR ALL OTHER KI NDS OF SCORE SHEET ERRORS, AND THERE IS NO IND ICATION THAT HEGGS INTENDED TO DO THAT.

I DON'T SEE , WELL , MAYBE HEGGS DIDN'T SAY THAT , BECAUSE HEGGS WAS TALKING ABOUT SI NGLE SUBJECT VIOLATION, BUT I DON'T SEE ANY REASON WHY THAT RULE OR THAT HOLDING CANNOT APPLY TO ANY SCORE SHEET ERROR , BECAUSE

GONE ON. FINISH UP.

YOU ARE GO ON. FIN YOU SHALL UP.

YOU ARE NOW A POSTCONVICTION ACTION.IN A POSTCONVICTION AC TION, YOU DO NOT HAVE THE SAME STANDARDS THAT YOU HAVE IN AN ACTION ON DIRECT APPEAL. THIS WAS A LEGAL SENTENCE.IT WAS WITHIN THE R A NGE THAT WAS AVAILABLE, EVEN UNDERTHE CORRECTED SCORE SHEET. A GAIN, THIS COURT STATED , IN LEBANON, AND I STATED THAT IT IS NOT DIRECT LY ON POINTBUT THE REAS ONING IS THESAME, THAT THE INTENTION IN HEGGS WAS NOT FOR THE TRIALCOURT TO APPLY SUBJECTIVE HINDSIGHT ANALYSIS, AND EVEN JUS TICE PARIENTE , IN THE DISSENTING OP INION , A LONG WITH JUSTICE SHAW , SAID THAT THE COULD -HAVE-BEEN-IMPOSED RULE UNDER THE GUIDELINES APPLIES TO A NONDEPARTURE SENTENCES AND WHAT WE HAVE HERE IS A NONDEPARTURE SENTENCE. N OW, THE DEFENDANT COULD RAISE IT AS I SAID ON DIRECT APPEAL. THEN YOU HAVE THE HARMLESS ERROR ARGU MENT. IT HAS GOT TO GO BACK BECAUSE YOU DON'T KNOW.

I GUESS ONE OF THE PROBLEMS I A M HAVING WITH THE STANDARDS THAT , AS ARTICULATED , WHETHER IT SHOULD BE WOULD HAVE BEEN IMPOSED OR COULD HAVE BEEN IMPOSED , THAT , SIN CE YOU CANBRING THE SCORE SHEET ERRORS AT ANY TIME , YOU KNOW, IT COULD BE FIVE Y EARS DOWN THE ROAD , IF YOU USE THE WOULD HAVE BEEN IMPOSED , IF THETRIAL JUDGE IS NO L O NGER THESENTENCE I AM WO RKING ON HOW WOULD A SHOULD HAVE BEEN IMPOSED , BE A WOULD HAVE BEEN IMPOSED STANDARD.

THE WOULD HAVE BEEN IMPOSED STANDARD , YOU CAN USE IT IN A CASE WHERE YOU ARE RAISING IT IN A 3.8 50 , BUT THEN THE BURDEN IS GOINGTO BE ON THE DEFENDANT , TO SHOW THAT THE JUDGE, THE SENTENCE WOULD HAVE BEEN DIFFERENT , BECAUSE WE ARE T ALK IN A SENSE , TALKING BASICALLY THAT DEFENSE COUNSEL RENDERED A N EFFICIENT

WE ARE JUST TALKING AB OUT APPELLATE LAW, ARE WE NOT , THAT IF YOU FOUND AN ERROR , THE NE XT WHAT QUESTION IS WAS IT PREJUDICIAL ERROR OR WAS IT HARMLESS, AND THAT IS WHERE THE "WOULD" COMES IN , BUT I GUESS MY , I HAVE ALWAYS TAKEN THE EXPRESS PROVISION OF THIS KIND OF ERROR , IN THE RULE , TO SIMPLY M EAN TO ENGRAFT IN THE RULE, REALLY, A S ORT OF SUPER APPE LLATE PROCEEDING. THAT IS TO SAY WE ARE GOING TO ALLOW THIS. WE MAY NOT HAVE HAD TO , THEN YOU TALK ABOUT THE ILLEGAL SENTENCE THAT WAS IN THE CASE THAT ORIGINATED THIS, BUT NEVER THELESS THE RULE WAS CHANGED , AND THE WAYTHAT IT HAS BEEN INTERPRETED IS THAT YOU TREAT IT JUST A S IF YOU WERE ABLE TO RAISE IT AN APPEAL , AND THIS WAS AN APPEAL. THAT I T GOES BACK UNDER THAT SAME STANDARD.I AM HIM JUST CONCERNED ABOUT, AS JUSTICE PARI ENTE SAYS , PERHAPS WE NEED TO REEXAMINE , YOU KNOW, THAT , AND IN THE CO NTEXT OF WHATWE DID IN HEGGS , AND THAT IS A PERFECTLY APPROPRIATE WAY , BUT I THINK WE ARE SORT OF UPSETTING THE STABILITY OF ACTUALLY WHAT OC CURRED, IN TERMS OF AME NDING THAT RULE, AND THAT IS THE BUMP THAT I HAVE TO GET OVER HERE , THAT IS, SO IF YOU CAN HELP US WITH THAT.D ON'T YOU AGREE THAT THAT IS WHAT, REALLY , THE INTENT , THE IMPACT OF HAVING THAT SPECIFIC PROV ISION WAS, WAS TO PUT IT IN THE SAME CATEGORY AS IF HE HAD RAISED ON APPEAL , THAT THAT , WE WANTED TO BE SURE, WITH THE INTEGRITY OF THAT SENTENCING PROCESS, THAT EVEN THO UGH IT WAS LA TER , THAT YOU COULD STILL RAISE IT AND GET A RECONSIDERATION ?

WELL , THAT WOULD BE FINE , B ACK IN 1986 , BUT I DON'T THI NK IT IS VIABLE T O DAY, BECAUSE NOW YOU , YOU KNOW , YOU HAVE THESE PROC ESSES IN PLACE WHERE YOU CAN RAISE, THERE IS NO REASON WHY IT CANNOT BE RAISED ON DIRECT APPEAL. I MEAN, IT IS THERE. FOR EVERYONE TO SEE.

YOU MAY HAVE A GO OD ARGUMENT THAT WE OUGHT T O RELOOK AT ALL OF THIS, IN TERMS OF THE WAY THE RULE REA DS AND EVERYTHING , BUT I WONDER WHETHER JUST SAYING NO , THAT WHEN WE DECIDEDHEGGS , THAT WE DECIDED, YOUKNOW, BEC AUSE THAT JUST DIDN'T HAPPEN , THAT WAS NOT ON OUR M I NDS IN HEGGS .

WELL , AG AIN, I CAN'T READ WHAT THE COURT 'S THIN KING

YOU DON'T HAVE TO READ THE COURT'S MIND. THAT IS WHAT WE WERE DEALING WITH AT THE TIME.

WHAT THE COURT SAID IN HEGGS WAS , IF THE SENTENCE COULD HAVE BEEN IMPOSED - -

KNEW A NUMBER OF CASES.

I AM SO RRY .

WE KNEW THERE WERE GOING TO BE A NUMBER OF CASES. WE NEVER TALKED ABOUT THIS POSTCONVICTION RULE .

BUT ISN'T IT A DISTINCTION WITH OUT A DIFFERENCE? YOU ARE STILL , IN OTHER WORDS YOU ARE DENYING ALL THESE PEOPLE REL IEF IN HEGGS

I THINK THAT THAT IS THE SAME ARGUMENT M ADE ON THE OTHER SIDE , OBVIOUSLY, TOO , IS THAT , AREN'T YOU , REALLY RATIONALIZEING BECAUSE YOU ARE WOR RIED ABOUT A LARGENUMBER OF CASES, AND YOU REALLY SHOULDN'T HAVE DONE THAT, THAT THAT , REALLY , W ASAN ERROR, IN THE FACE OF THIS OTHER LAW, THAT EXISTED.BUT WE WENT A HEAD AND DID I T , JUST AS WE HAVE GONE A H EAD AND DONE IT IN A LOT OF THESE CASES WITH PR ISON C REDIT AND WHATEVER.WE HAVE SAID WE ARE GOING T O NARROWLY, YOU KNOW, G RANT HE ON GR ANT RELIEF, EVEN THOUGH WE HAVE T HIS ISSUE OF TIME.

I THINK THE STANDARD SHOULD BE , WHEN IT COMES TO POSTCONVICTION ACTIONS , WHENYOU ARE DEALING WITH SOMETHING THAT HAS TAKEN PLACE THAT THE CONVICTION HAS BEEN AFFIRMED ON DIRECT APPEAL AND THIS IS SE VERAL YEARS DOWN THE ROAD , THAT THE DEFENDANT HAS TO BRING IT IN A TIMELY FASHION, AND IN A TIMELY FASHION

ISN'T THAT DISTURBING THE INTEGRITY , THOUGH , OF SENTENCING, THAT HERE IS A SET OF CIRCUMSTANCE THAT THE T RIAL JUDGE WHO IS IMPOSING THIS V ERY S E RIOUS THING OF HOW LONG A PERSON IS GOINGTO BE , HAVE THEIR FREEDOMTAKEN AWAY FROM THEM , HAVE ACCURATE DATA TO MAKE THAT DECISION, AND SO IF IT TURNSOUT THERE IS A BIG FLAW IN THAT , THEN THE WHOLE INTEGRITY OF THE SENTING PROCESS IS CA LLED INTO OF THE SENTENCING PROCESS CALLED INTO QUESTION, IS IT NOT, AND WITH THE MOST IMPORTANT VALUE THAT WE HAVE IN OUR SOCIETY , PEOPLE'S FREEDOM, BEING AT-RISK?

BUT IT STILL IS A LEGAL SENTENCE. IT IS WITHIN THE RA NGE. THE COURT DID NOT IMPOSE A SENTENCE THAT IT COULD NOTHAVE IMPOSED . NOW , IF THERE WAS SOMETHING IN THE RE CORD THAT SPECIFICALLY INDICATED THAT THE COURT SAID , W ELL , I AM IMPOSING THE BOTTOM, I WISH I COULD GO LO WER BUT I CAN'T. I AM GIVE YOU GO THE BOTTOM OF THE GUIDELINES I A M GIVING YOU THE BOTTOM OF THE GUIDELINES, THAT IS ONE THING , BUT WHERE YOU ARE DEALING WITH IN THE MIDDLE , OR WHEREAS IT IS NE AR THE TOP AND NOW IT IS IN THE MIDDLE BE FORE IT WAS NEA R THE BOTT OM. NOW IT IS IN THE MIDDLE , NEAR THE TO P , IT IS ALL SUBJECTIVE, AND WE SHOULD N'T HAVE TO DEAL WITH THAT , IN A POSTCONVICTION ACTION SHALL!

WELL , THAT IS ACTION!

WELL THAT , IS THE TRADE-OFF IS WE ARE MAKING SOME ADMINISTRATIVE VENT ACT THAT, REALLY, DEVALUES JUSTICE IN THE INDIVIDUAL CASE, IN F A VOR OF EFFICIENCY OF THE SYSTEM, ARE WE NOT?

WE ARE NOT DEVALUING JUSTICE , IF THE DEFENDANT CAN RAISE IT. HE CAN STILL RAISE IT I N A 3.800-C MOTION, I M EA N EXCUSE ME, A 3.850 MOTION , BUT THE DEFENDANT SHOULD HAVE SOME KIN D OF A THRESHOLD BU RDEN TO SHOW HARMFULNESS.I MEAN, THE SENTENCE IS LEGAL. THERE IS NOTHING , UNLESS THERE IS SOME THING IN THE RECORD THAT SHOWS THAT THE COURT WAS INTENDING TO GIVE HIM EXACTLY THE MIDDLE OF THE GUIDELINES OR GIVE HIM THE BOTTOM OF THE GUID ELINES , WHERE , WHER E IS THE HARM HERE? THERE IS NO HARM HERE.

PRESUM ABLY THE JUDGE PAID ATTENTION TO ALL OF THESE THINGS THAT HE WAS SUPPOSED TO PAY OR SHE WAS OPPOSED T O - - WAS SUPPOSED TO PA Y

ISN'T THE VAST MAJORITY OF SENTENCING BASED UPON PLEA AGREEMENTS , AND THE DEFENSE COUNSEL AND STATE AN ATTORNEY GET TOGETHER AND LOOK AT THE SCORE SHEET , LIKE IN THIS CASE HE WAS LOOKING AT A RANGE FROM 81-TO-136 MONTHS, AND THEYWERE IN THE BOTTOM OF THAT RANGE. AND IF IT WAS CORRECT ANDTHEY WERE LOOK ING AT THE BOTTOM RANGE, HE MIGHT BE LOOKING AT 75 MON THS, SO WE ARE TALKING ABOUT OVER A YEAR OF SOMEBODY'S L IFE IN PRISON, AND IN THE CALCULATION THE WHOLE PROCESS THAT GOES ON , YOU ARE LO OKING A T AN INACCURATE SCORE SHEET , WHICH IS ONE OF THE FI RST THINGS THAT ONE LOOKS AT, IN TR YING T O NEGOTIATE WHAT A REASONABLE SENTENCE WOULD BE, WHI CH OCCURS IN , LIKE , 98 PERCENTOF SENTENCING.

WHEN YOU ARE DEALING WITH NEGOTIATED SENTENCES, NOW YOU ARE DEALING WITH A DIFFERENT BALLGAME , BECAUSE THE DEFENDANT IS RELY IN G , HE IS ACCEPTING A SENTENCE, THINKING THAT , WELL , THIS IS THE BOTTOM OF THE GUIDELINES . THEY ARE OFFERING ME THIS. AND I WILL TA KE IT , BECAUSE I KNOW I AM GOING TO BE F OUND GUI LTY ANYWAY. WHEREAS WITH THE CORRECTED SCORE SHEET , NOW IT IS THETOP OF THE GUIDELINES . THE COURT HAS , I T IS C LEAR THAT HE IS ENTITLED TO WITHDRAW HIS PLEA IN A SITUATION LIKE THAT. BUT WE ARE NOT DEALING WITH THAT HERE.

EVEN IN THIS CASE AS JUSTICE AN STEAD SAID , WHEN ATRIAL COURT IS LOOKING AT IT , HE IS LOOK ING AT THE RANGE , LOOKING AT A WHOLE FA CTOR OF THINS , BUT ONE OF THE FIRST THINGS THEY ARE LOOKING AT IS WHAT IS THE RANGE. THE RANGES NO LON GER EXIST , SO WE ALL HAVE TO

BUT THE SENTENCE IS STILLWITHIN THE RANG E. IT IS STILL A LEGAL SENTENCE. HOW DO W E KNOW , WE ARE SPECULATING. WE ARE SPEC ULATING AS TO WHAT THE COURT INTENDED , ANDTHIS COURT HAS STATED

CHIEF JUSTICE: WELL , ITHINK WE UNDERSTAND YOUR ARGUMENT. BECAUSE YOU USED OR HAD SUCH A SMALL TIME FOR REBUTTAL, WE ARE NOW IN AN EXP IRED OR USED UP YOUR REBUTTAL TIME , BUT DEPENDING ON WHAT GE TS RAISED ON THE OPPOSING ARGUMENT , I MAY GIVE YOU A FEW SE CONDS .

THANK YOU.

CHIEF JUSTICE: THANK YOU VERY M UCH .

IF IT PL EASE THE COURT . RICHARD NAPOLITANO . RICHARD SANDERS FOR THE RESPONDENT. LET ME MAKE SURE WHAT WE ARE TALKING ABOUT. FIRST OFF , THIS IS NOT A PLEA CASE.IT WAS NOT. THIS WAS A , IN THE BRIEF, AN IMPOSED SENTENCE. YOU MA DE AN INTE RESTING POINT THAT THE TRIAL JUDGEMAY HAVE HAD AN INACCURATE SCORE SHEET THAT MAY HAVE GONE 75 M ONTHS OR SO AND COLLECT DOC WEB SITE , THAT IS EXACTLY SENTENCE HE GOT. HE HAS BEEN RESENTENCED , AND HE GOT A 75-MONTH SENTENCEOUT OF THIS. IF THE COURT RECALLS, YOU DENIED THE MOTI ON FOR THESTAY AND THAT IS WHAT HE GOT , 75 MONTHS.

AS OP POSED TO WHAT?

9 0 IS WHAT HE GOT ORIGINALLY.

A GOOD GUESS , HUH?

VERY GOOD GUESS. I CAL CULATED IN THE ANSWER BRIEF, THAT IF YOU TOOK IT AS A MATTER OF PERCENTAGE , AS TO WHAT THE PERCENTAGE WAS HE GOT AND WHAT THE PERCENTAGE WOULD HAVE BEEN IF IT HAD BEEN THE SAME UNDER THE ACC URATE SCORESHEET , I FIGURED IT AT ABOUT 77 MONTHS, SO APPARENTLY THETRIAL COURT DI D THE SAME THING.

LET ME ASK YOU SOMETHING. WHAT I AM HAVING TROUBLEWITH IS THE DIFFERENCE BETWEEN A DIRECT APPEAL AND POSTCONVICTION.

RIGHT.

I HAVE NO PROBLEM WITH THE IDEA THAT A WOULD-HAVE-BEEN IMPOSED STANDARD SHOULD APPLY ON DIRECT DIRECT APPEAL , BUT I T SEEMS LI KE A FEW Y EARS AGOWHERE WE HELD THAT IN ORDER TO RAISE IT ON APPEAL YOU SHOULD HAVE PRESERVED IT , AND WE HA LOT OF AND WE HAD A LOT OF TROUBLE AMENDING THE RULE TO ALLOW THE DEFENDANTS WHO HADN'T AMENDED AT SENTENCING, TO GOAHEAD AND FI LE A P OST SENTENCE MOTION TO CORRECT THE ERROR SO THEY CAN APPEAL IT ON DIRECT APPEAL, AND IT SEEMS LIKE WE WENT TO A LOT OF TROUBLE TO ALLOW DEFENDANTS TO GET THAT DIRECT APPEAL IN , HOWEVER , IF WE ARE NOW GOING TO IMPOSE THE SAME STANDARD OPPOSE THE CONVICTION THAT WE DO ON DIRECT APPEAL, THEN IT SE EMS LIKE ALL THAT EFFORT I N 3.800-B , IS IRRELEVANT, BECAUSE THE DEFENDANT DOESN'T HAVE TOPRESERVE IT AT THE TRIALCOURT , DOESN'T HAVE TO RAISE IT ON APPEAL , ALL HE HAS TO DO IS WAIT UN TIL POSTCONVICTION AND RAISE THE EXACT SAME ISSUE. HE WILL HAVE THE EXACT SAME STANDARD, AND THERE IS NO INCENTIVE TO RAISE THAT ISSUE B E FORE POSTCONVICTION.

IT IS IRRELEVANT IN THESENSE THAT YOU DON 'T HAVE TO USE 3.80 0-B , THAT IS T RUE , BUT YOU CAN ALSO USE 3.800-A OR 3.850 DURING THE SAME TIME FRAME. YOU D ON'T HAVE TO DO A DIRECT APPEAL.

3.800- B, IS THAT , WHATEVER THE RULE IS THAT WE AME NDED, APPL IES TO ALLSORTS OF ERRORS.

RIGHT.

I WOULD IM AGINE THAT, I F A DEFENDANT KNOWS THERE IS A SCORE SHEET ERROR , THERE IS NO IN CENTIVE FOR THE DEFENDANT TO WAIT AS LONG AS POSSIBLE TO RAISE IT , S I NCE THE WHOLE ID EA IS THAT IT IS GOING TO GIVE THEM, MAYBE , A LESSER SENTENCE.

EXACTLY . EXACTLY PO INT I WAS ABOUT TO MAKE. EXACTLY RIGHT.THERE WAS NO TACTICAL REASON TO DO THIS , NO TACTICAL REASON, IF YOU KNOW THE ERROR IS THERE, YOU WANT TOGET IT RAISED AS QUIC KLY AS POSSIBLE.

I DON'T UNDERSTA ND. WHY DID WE GO THROUGH ALL THE TROUBLE TO SA Y YOU HAVE TO RAISE IT ON APPEAL , YOU HAV E TO HAVE PRES ERVED IT BELOW, AND IF YOU DIDN'T PRESERVE IT B E LOW, YOU ARE NOT ALLOWED TO RAISE IT ON APPEAL, WELL , THEN , PRESERVATION IS ALSO IRRELEVANT, BECAUSE YOU CANJUST, IF YOU DIDN 'T RAISE IT BEL OW, YOU JUST WAIT UNTIL POSTCONVICTION. YOU RAISE IT THE N.YOU GET THE SAME STANDARD , SO

YE S.

WE HAVE LO ST ALL OF THE BA SIS FOR SAYING YOU HAVE TO HAVE PRESERVED THIS ERROR .

I WOULD SAY THIS , FIRST OFF , IF YOU ARE DEALING WITH THIS TYPE OF C LAIM AS INEFFECTIVE ASSISTANCE C LAIM , IN WHI CH CASE , OF COUR SE YOU HAVE A TWO-YEAR TIME LIMIT , IF YOU ARE DEALING WITH IT AS AN INEFFECTIVE ASSISTANCE CLAIM , THE N YOU HAVE TO ASK YOURSELF , W HAT DOES THE DEFENDANT HAVE TO SHOW , IN ORDER T O ESTABLISH THE PREJUDICE PRONG OF INEFFECTIVE ASSISTANCE. IT SEEMS CL EAR TO ME , PARTICULARLY IN THIS CASE , THESE TYPE OF FACTS, YOU HAVE DEFICIENT PERFORMANCE CLEAR ON THE FACE OF THE RECORD. YOU DON'T EVEN NE ED AN EVIDENTIARY HEAR ING ON THAT . THIS ERROR SHOULD HAVE BEEN SPOTTED BY EVERYBODY, THE PROSECUTOR AND TRIAL COURT AND ORIG INAL COU NSEL AT SENTENCING AND IT WASN'T. YOU HAVE GOT DEFI CIENT PERFORMANCE.WHAT DOES THE DEFENDANT HAVE TO SHOW, TO SHOW PREJUDICE , AND YOU ARE SUGGESTING , AND I BELIEVE YOU ARE, THAT IN SOME CIRCUMSTANCES THESTANDARD OF PREJUDICE IN A 3.850 , IN INEFFECTIVE ASSISTANCE CL AIM, IS DIFFERENT THAN A STANDARD HARMLESS ERROR CLAIM THAT WOULD APPLY IN A DIRECT APPEAL AND IN THIS CASE THAT IS CERTAINLY TRUE N THIS CASE, WHAT DID HE HAVE TO DO TO SHOW PREJUDICE? IF YOU ARE GOING TO IMPOSE SOMETHING OTHER THAN THE SAME WOULD-HAVE-BEEN IMPOSED TEST, HOW IS THE DEFENDANT SUPPOSED TO SHOW THAT PREJUDICE?THE ONLY WA Y TO DO IT , ITSEEMS TO ME , IS TO BRING THE ORIGINAL TRIAL JUDGE IN ANDPUT HIM UNDER OATH AND SAY WHAT WOULD YOU HAVE DONE , HAD YOU KNOWN THE SCORE SHEET WAS INACCURATE ? THAT DOESN'T SEEM TO BE A PARTICULARLY GOOD WAY TO HANDLE THIS.I WOULD, ALSO, ARGUE THIS POINT . WHAT DO YOU MEAN WHEN YOU ARE SHOWING PREJUD ICE? REASONABLE PROBABILITY THAT THE OUTCOME OF THEPROCEEDING WOULD HAVE BEEN DIFFERENT . IN THIS CIRCUMSTANCE , IF YOU ARGUE THAT THE DEFICIENCY WAS FAIL UR E T O PRESER VE THE ISSUE FOR APPEAL , THEN I WOULD SAY THE PREJUDICE IS, IF THERE IS A HIGH ARE STANDARD IN A POSTCONVICTION MOTION A HI GHER STANDARD THAT POSTCONVICTION MOTION THAN WHAT HE HAS LOST BY COUNSEL'S FAILURE TO PRESERVE THE ISSUE , IS THE M ORE FAVORABLE STANDARD THAN WHAT WOULD HAVE APPLIED ON DIRECT APPEAL IN THE FIRSTPLACE HAD, WHICH IS THE WOULD-HAVE-BEEN IMPOSED TEST , SO YOU ASK YOURSELF THIS , IF COUNSEL WOULD HAVE PRESERVEDTHE ISSUE IN THE TRIAL COURT AND DIDN'T, AND THE DEFENDANT LOST THE APPLICATION OF THAT WOULD-HAVE-BEEN IMPOSED TEST AND ENDS UP WITH A HIGHER STANDARD, COULD-HAVE-BEEN IMPOSED OR WHATEVER IT IS , THEN DON'T YOU HAVE TO SAY, HAD COUNSEL PRESERVE D IT , YOU WOULD HAVE GOTTE N THAT WOULD-HAVE-BEEN IMPOSED 12D AS THE STANDARD AS THETEST. THEREFORE YOU HAVE T O APPLY THAT WOULD -HAVE-BEEN IMPOSED TEST, TO SEE WHAT HE WOULD HAVE GOTT EN ON DIRECT APPEAL , HAD THE ISSUE BEEN PROPERLY PRESERVED.

THIS IS ALL 3.85 0 YOU ARE ARGUING NOW.

3.850.

SO , AGAIN , THEREQUIREMENT IN 3.800-B THAT YOU HAVE TO PRESERVE THIS ISSUE IN THE TRIAL COURT , UNDER YOUR ARGUMENT IS IRRELEVANT , AT ANY POINT , BECAUSE IF YOU DIDN'T PRESERVE IT, THEN YOU HAVE A 3 .850 CLAIM.

RIGHT.

AND SO YOU GET THE SAME STANDARD ANYWAY, SO YOU DON'T , ESSENTIALLY YOU DON'T HAVE TO PRESERVE ANY SENTENCING ERROR. IT DOESN'T MA TTER. YOU CAN RAISE IT AT ANY TIME, AND IF IT IS NOT A 3.800-B , THEN IT IS A 3.800-A OR A 3.850 .

.

3.850 IS APPORTIONED TO YOUR TIME LIMIT , AND 3.800-B IS IRRELEVANT.

3.800-A IS AT ANY TIME,SO YOU HAVE THREE SHO TS. YOU GET T O PRESERVE IT OR YOU CAN DO A 3.850 BUT YOUMISSED THAT TIME.IT IS TWO YE ARS. SO THEN FIVE YEARS LATER YOU SAY, WELL , NOW I HAVE GOT 3.800-A.IT SAYS AT ANY TIME I GETTHE SAME STANDARD, SO I WILL RAISE THAT. THIS IS MY THIRD BITE.

ON LY IF IT IS APPARENT ON THE FACE OF THE RECORD. IF IT IS A SCORE SHEET ERROR SUCH AS WHETHER A PR IO R CONVICTION WAS PROP ERLY SCORED THAT MAY REQUIRE AN EVIDENTIARY DETERMINATION, THEN YOU MAY BE OUT OF LUCKIN A 3.800-A MOTION , SO THERE IS A TIME L IMIT IN THAT SENSE, ON SOME OF THESE CLAIMS, BUT THIS IS OBVIOUSLY NOT ONE OF THEM. THIS IS SOM ETHING THAT IS PLAIN ON THE FACE OF THE RECORD, BUT, AG AIN, MY ARGUMENT WOULD BE YOU ARE TALKING ABOUT 3.800 B, WHO IS SUP POSED TO DO THAT? THE TRIAL COUNSEL O R PE LL AL AT COUNSE L. OR APPE LLATE COUNSEL.

IN THIS CASE ARE WE TALKING ABOUT WHET HER OR NOT SOMETHING SHOULD HAVE BEEN SCORED AT AN EIGHT LEVEL OR NINE LEVE L, AND SO WH Y IS THAT PLAIN ON THE RECORD, WHEN YOU HAVE TO GO BACK AND CONSULT AN OTHER STAT UTE , TO DETERMINE WHICH ONE APPLIED? I AM NOT SURE I , THAT PART OF IT KIND OF ESCAPES ME.

WELL , I THINK IT IS PLAINON THE FACE OF THE RECORD WHAT HE WAS CHARGED, WHAT HE PLED TO , WHAT , IT WAS A PLEA ORIGINALLY. WHAT HE PLE D TO.

BUT IS IT PLAIN ON THEFACE OF THE RECORD WHAT LEVEL IT SHOULD BE VERY IT SHOULD HAVE BEEN?

IT IS PLA IN ON THE FACE OF THE RECORD , IN THE SENSETHAT YOU KNOW WHAT HE PL EDTO AND THEN YOU LOOK AT THE STATUTE AND SEE WHERE IT IS SUPPOSED TO BE SCORED.

PLAIN ON THE RECORD IS THAT I T DOESN'T REQUIRE AN EVIDENTIARY

RI GHT. EXACTLY. YES.

BUT DO YOU, GOING BACK TO THIS ISSUE ABOUT WHAT JUSTICE CANTERO RAISED, THAT IS THAT , WHEN WE PUT 300-A TOGETHER AND AD DED THE SCORE SHEET ERRORS, THERE WERE TWO DIFFERENT THIN GS. FIRST OF ALL , THERE WASN'T A SAFETY VALVE LIKE WE HAVE NOW.

RIGHT.

AND, A LSO , SENTENCING WAS DIFFERENT.YOU KNOW, AS FAR AS , SO IS THERE AN ARGUMENT TO BE MADE THAT , WHETHER WE DO IT FOR THIS CASE OR NOT, THAT THE R ULE SHE BE AM ENDED TO HAVE A TIME LIMIT ON SCORE SHEET ERRORS OR WH Y SHOULD THEY BE RAISED AT ANY TIME? AGAIN , BECAUSE AT LE AST I F YOU RAISE THEM QUICKLY , YOU HAVE THE ORIGINAL SENTENCING JUDGE , REALLY , WHO KNOWSWHAT HE OR SHE WOULD HAVE DONE. I DON'T KNOW IF THIS CASEWENT BACK TO THE SAME SENTENCING JUDGE. B UT IF YOU HAVE TO HAVE A WHOEM WHOLE NEW RESENTENCING A WHOLE NEW RESENTENCING SEVERAL YEARS LATER AND YOU HAVE ADDITIONAL BURDEN ON THE STATE , SO IS THERE AN ARGUMENT TO BE MADE THAT WE , REALLY, O UGHT T O PUT , NOT , YOU KNOW, SINCE THIS IS NOT A LEGAL , UNDER, UNDER OUR DEFINITION, THAT WE, REALLY , O UGHT TO PUT A TIME LIMIT O N SCORE SHEET ERRORS?

I THIN K THE ARGUMENT HERE GETS BACK TO THE POINT JUSTICE ANSTEAD WAS MAKING , IS THE TRADE-OFF BETWEEN FINALITY, SHALL WE SAY, AND EFFICIENCY, AS OPPOSED TO ULTIMATE JUST ICE.

WE MA KE THAT , TH OUGH , ALLTHE TIME IN 3.850 , UNFORTUNATELY , WHEN YOU HAVEN'T GOT YOUR WITNESS YOU , FOUND THAT WITN ESS BUT YOUDIDN'T RAISE IT WITHIN THE TWO YEARS, SO THERE IS ALREADY THAT TRADE-OFF OF THE TWO YEARS.

EXACTLY.

AND THERE MIGHT BE WO RSE ERR ORS I N , THAT AREN'T RAISED WITHIN THE TWO YEARS THAN THE SCORE SHEET ERROR , SO WE HAVE AL READY MADE SOME TRADE-OFFS.

CORRECT. YES. WELL , CERTAINLY. BUT MY ARGUME NT WOULD BE THIS. WE ARE TALKING ABOUT THIS SPECIFIC TYPE OF E RROR, NOT GENERAL PRINCIPLES HER E BUT THIS SPECIFIC TYPE OF ERROR. YOU HAVE A SCORE SHEET ERROR , PLAIN ON THE FACE OF THE RECORD. EVERYBODY SHOULD HAVE SPOTTED IT. THE TRIAL JUDGE SHOULD HAVE SPOTTED IT. THE TRIAL JUDGE IS THE ONEWHO HAS THE ULTIMATE RESPONSIBILITY FOR ENSURING THAT THE SCORE SHEET IS ACCURATE. STATE ATTORNEY SHOULD EN SURE IT IS ACCURATE. THAT IS THE ONE THAT AL WAYS PREPARES IT

YOU BROUGHT IT IN THE 3.850.

RIGHT.

BUT I AM TA LKING ABOUT GENERALLY, THAT IF IT IS A WOULD -HAVE COULD-HAVE SITUATION AND YOU DON'T HAVE THE ORIGINAL SENTENCING JUDGE, THEN , THERE IS A BURDEN TO THE SYSTEM , THAT IT IS , REALLY HAS TO GO THROUGH A WH OLE NEW RESENTENCING, BECAUSE THAT SECOND JUDGE DOESN'T KNOW WHAT WAS IN THE FI RST JUDGE'S MI ND, BECAUSE THERE IS PRE TTY MU CH A LOT O F DISCRETION.

EXACTLY.

SO SHOULDN'T THERE BE , AT LEAST IF WE DON'T SAY THERE IS A DIFFERENT BURDEN , SOME L IMIT IN WHICH THE SE SHOULD BE BR OUGHT ?

WHAT WOULD THAT LIMIT BE?

YOU KNOW , TH REE YEARS , F OUR YEARS, FIVE YEARS?

YEAH. WELL , I DIDN'T ME AN THE TIME LIMIT. I MEA N, WHAT IS THE LIMIT , A S FAR AS THE STANDARD?

NO. I AM NOT. I AM SUGGESTING THAT JUST BECAUSE WE ARE TALKING ABOUT, YOU KNOW, TAKING ADVANTAGE OF THE SYSTEM , THAT WE , IF THAT OCCURS, I MEAN , I N YOUR EXPERIENCE, ARE THESE SCORE SHEET ERRORS GE NERALLY FOUND W ITHIN THE FIRST COUPLE OF YEARS, IF THE Y ARE NOT SPOTTED IMMEDIATELY?

IN MY EXPERIENCE , THEY ARE FOUND WITHIN A FEWYEARS.I AM SU RE THERE IS SOME. I KNOW I HAVE HANDLED CASES WHERE IT IS BE YOND A TWO-YEAR THING, B UT THAT WASTHE POINT. THE ONLY PERSON INVOLVED IN THE SENTENCING PROCESS WHO IS NOT EXPECTED TO KNOW THERULES , IS THE DEFENDANT. EVERYBODY ELSE IS EXPE CTED TO KNOW THE RULES. EVERYBODY EL SE HAS THE OBLIGATION OF MAKING SURE THAT THIS SCORE SHEET IS ACCURATE.

AND THAT IS PRECISELY WHY WE AMENDED 3.800-B , RIGHT? TO ALLOW , WHERE THE TRIAL COUNSEL MI SSED IT , APPE LLATE COUNSEL SUPPOSEDLY CAN FIND IT IN MOST CASES, SO THAT WE SAY

RIGHT.

YOU CAN PRESERVE IT, NOT PRESERVE THE TRIAL BUT EVEN PRESERVE IT IN RELINQUISHMENT.

RIGHT , AND IF APPELLATE COUNSEL MISSES IT, TOO , HOW IS THAT THE DEFENDAN T'S FAULT?

DID YOU RAISE THIS AS AN INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL AS WELL AS TRIAL COUNSEL?

IN THE 3.850 MOTION , ITWAS DONE PRO SE . HE RAISED IT STRICTLY AS A SENTENCING ERROR. HE DIDN'T RAISE IT AS INEFFECTIVE , THERE WAS AN INEFFECTIVE ASSI STANCE CLAIMIN THE MOTION BUT THAT WAS NOT THE SENTENCING ISSUE. HE RAISED A N INEFFECTIVE ASSISTANCE ISSUE AND A STRICKLAND CLAIM, JUST IN THE SENTENCING ERROR.

AND THAT IS WHY IT WAS A 3.800 INSTEAD OF A 3.850?

IT WAS CONSIDERED A S 3.8506789 I THINK THIS COURT CAN CONSIDER IT AS A 3.800 , GIVEN THE LIBERALITY .

YOU ARE SAYING IF IT IS AN INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL , THEN YOU ARE ARGUING FOR PREJUDICEBECAUSE IT SHOULD HAVE BEEN RAISED ON DIRECT APPEAL ANDIT WAS SO CLEAR, THAT IT SHOULD HAVE BEEN .

EX ACTLY BUT THERE WAS NO APPEAL IN T HIS CASE , F ROM THE ORIGINAL APPEAL. THIS WAS RAISED IN A PER SE 3.850 MOTION. HE ENTERED A PLEA ORIGINALLY. HE WAS ON PROBATION. HE VIOLATED THE PROBATION AND WAS RESENTENCED UNDER THE '94 SCORE SHEET. THERE WAS NO DIRECT APPEAL FROM THE VI OLATION , FROM THE VIOLATION SENTENCING , AND THEN H E RAISED IT PRO SE IN A 3.850 MOTION , AND E VEN IF THERE HAD BEEN AN APPEAL , I WOULD ARGU E IT IS IN HE HAVE ACCOUNT I HAVE ASSIST ANCE OF APPELLATE COUNSEL , PLAIN ON THE FACE OF THE RECORD , TO FAIL TO SP OT THIS ISSUE. THIS IS S UCH A N OBVIOUS ISSUE , SOMEBODY SHOULD HAVE SPOTTED IT BEFORE THIS TIME, AND I DON'T BELI EVE THERE IS ANY RA TIONAL ARGUMENT THAT CAN BE MADE THAT HE IS SOMEHOW GAMING THE SYSTEM HERE , THAT HE IS LE TTING THIS GO F URTHER DO WN THE LINE AND THEN BR INGING IT UP LATER , IN K IND OF A GOTCHA KIND OF A TECHNIQUE , BECAUSE HE IS THE ONE SERVING THE T IME .

WE HAVE TO ADOPT A BROADRULE, NOT JUST FOR THIS DEFENDANT BUT FOR ALL DEFENDANT.

RIGHT. RIGHT.

WE ARE NOT JUST CONSIDERING WHAT HE DID , WHAT HIS IN TENT , WE HAVE GOT TO CONSIDER THE BROADER RAMIFICATIONS OF THE R ULE.

RIGHT. AND WHAT WOULD BE THE RATIONALE FOR ANY DEFENDANT TRYING TO GAIN THE SYSTEM THIS TRYING TO G AME THESYSTEM THIS WAY. AGAIN, WE ARE DEALING WITH A SCORE SHEET RECORD , PLAIN ON THE FACE OF THE RECORD , THAT DOES NOT RE QUIRE ANY FACTUAL IF IT WAS ARGUE ABOUT WHETHER VI CTIM INJURY SHEETS WERE IMPROPERLY SCORED ANDYOU COULD ARGUE THAT THERE WAS A PL EA AND HE DIDN'T REALLY GET INTO THIS A T THE PLEA AND THE DEFENDANT MAYLET IT GO TO A WHI LE AND THEN THE VIC TIM DISAPPEARS AND THEY CAN'T PROVE VICTIM INJURY POINTS , THEN I THINKYOU HAVE GOT AN ARGUMENT , YOU SHOULD HAVE BROUGHT THIS UP EARLIER, BUT UNDER TH OSE CIRCUMSTANCES , 3.850 IS THE VEHICLE FOR THAT TYPE OF CLAIM, IF YOU ARE CLAI MING V ICTIM INJURY REPOR TS ARE IMPROPERLY SCORED.YOU NEED AN EVIDENTIARYHEARING ON IT , 3.850 , YOU HAVE GOT A T W O-YEAR TIME LIMIT.

I DON'T UNDERSTAND THE STATE ARGUING THAT WE NEED THIS RULE BECAUSE DEFENDANTS ARE NECESSARILY PLAYINGGAMES.I THINK THEY ARE SAYING WE NEED THIS RULE BECAUSE WE ARE NOW IN POSTCONVICTION. THERE NEEDS TO B E DIFFERENTSTANDARDS BECAUSE OF THE STATE'S INTEREST IN FINALITY AT THAT POINT , NOT BECAUSE DEFENDANTS ARE GA MING THESYSTEM.

IF THE COURT BELIEVES THAT THE INTE REST IN F INALITY OUTWEIGHS DEFENDANT'S INTERESTS IN, AND SOCIETY'S INTEREST IN MAKING SURE THAT THESE SENTENCING GUIDELINES SENTENCES ARE IMPOSED UNDERAN AC CURATE SCORE SHEET , SO THAT THE TRIAL COURT CAN EXERCISE ITS DISCRETION ITS B ROAD DISC RETION TO SENTENCE WITHIN THAT BROAD PERMITTED RANGE , I F THIS COURT BELIEVES THAT FINA LITY OUTWEIGHS THOSE INTERESTS, THEN CLEARLY YOU WA NT TO A DOPT SOME TYPE OF A TIME LIMIT RULE . I WOULD SUGGEST THAT IS NOTTHE PROPER B A LANCE. AND, AGAIN, IT IS NOT THE PROPER BALANCE , BECAUSE THIS IS NOT THE DEFENDANT'SFAULT. THIS IS THE FA ULT OF THE OTHER TH REE LAWYERS , POSSIBLY FOUR IF THERE WASAN APPEAL, WHO MISSED THIS ORIGINALLY.

LET ME , EVEN UNDER A COULD-HAVE-BEEN IMPOSEDSTANDARD, THERE WILL BE CASES , W ON'T THERE, WHERE THE DEFENDANT WILL PREVAIL OPPOSE THE CONVICTION , BECAUSE THE SENTENCE IS OUTSIDE OF THE RANGE IN WHICH IT COULD HAVE BEEN RENDERED.

YES. CORRECT.

IN THIS CASE IT WASN'T , BUT THERE ARE MA NY CASE S IN WHICH THERE MAY B E SE VERAL BUMPS , SEVERAL LEVELS DOWN , AND SO IT COULD NOT HAVE BEEN IMPOSED WITHIN THAT RECOMMENDED RANGE.

THAT'S CORRECT. BUT THERE COULD BUT THE COULD-HAVE-BEEN IMPOSED TEST WOULD HAVE BEEN IMP LIED , O NLY IF THERE WAS A DEPARTURE UNDER AN ACC URATE SCORE SHEET.THE SITUATION WE H AVE HEREIS THE SENTENCE IS WITHIN THE RANGE OF A PROPERLY CALCULATED SCORE SHEET . NOW , AS I ARGUED IN THE BRIEF , THE GUIDELINES , PARTICULARLY SI NCE THE 1988 AMENDMENT, THE GUID ELINES HAVE ALWAYS WORKED ON THE PREMISE THAT THE TRIAL COURT HAS , IN E FFECT , UNLIMITED DISCRETION FROM AN APPELLATE PERSPECTIVE, IN THE SE NSE THAT YOU CAN'T RAISE THIS ON APPEAL. THE TRIAL COURT HAS UNLIMITED DISCRETION TO SENTENCE ANYWHERE WITHIN THE PERMITTED RANGE , AND YOU CAN'T ARGUE ABOUT THAT ON APPEAL . HOWEVER, THE STRUCTURE OF THE GUIDELINES IS S UCH THAT IT IS , THE COURT'S DISCRETION IS GUIDED , NOT REVIEWABLE ON APPEAL BUT GUIDED NONETHELESS , BY THE STRUCTURE OF THE GUIDELINES. THE BA SIC FRAMEWORK OF THE GUIDELINES IS THAT A SENTENCE ABOUT THE MIDDL E RAN GE OF THE GUIDEL INES IS PRESUMED TO B E APPROPRIATE. I BELI EVE THAT IS THE LANGUAGE IN THE RULES. AND THAT THE EX TENT TO WHICH YOU VARY FROM THAT MIDPOINT RANGE , THE RECOMMENDED SENTENCE IS THE PH RASE THEY USE , THE EXTENT TO W HICH YOUVARY FROM THAT MIDP OINT RANGE WITHIN THE RECOMMENDEDRANGE, IS WITHIN THE COURT'S F ULL DISCRETION BUT THAT DISCRETION YOU ARE SU PPOSED TO , I THINK IT SORT OF ASSUMES THAT YOU GO A LITTLE BIT BELOW, IF , THE DISCRETION IS GUIDE IN THESENSE THAT , YOU GO ABOVE OR BEL OW THAT MIDPOINT RANGE , DEPENDING ON THE EXTENT TO WHICH YOU THINK THIS CASE IS G REAT ERROR LE SSER THA N THE AVERAGE CASE OF THIS N ATURE . WHATEVER, EXACTLY, THAT MIGHT BE . BUT THE LOGIC OF THE WHOLE THING IS THAT , IN ORDER TO, FOR THE TRIAL COURT TO PROPERLY EXERCISE THAT DISCRETION YOU HAVE TO HAVE AN ACCU RATE SCORE SHEET THAT TELLS YOU WHERE THAT MIDPOINT RANGE IS AND WHERE THAT UPPER AND LO WE R PERMITTED RANGE IS. IF YOU HAVE A CIRCUMSTANCE , AS YOU DID IN THIS CASE , WHERE THE TRIAL COURT BELIEVERS , IS LO OKING AT AN INACCURATE SCORE SHEET AND BELIEVES IT IS SENTENCING AT THE LOWER END EVERY TIME RANGE, AND IT T URNS OUT UNDER AN ACCURATE SCORE SHEET YOU ARE IN THE MID, MAYBE UPPER E ND OF THE RANGE, THEN IT SEEMS TO ME YOU HAVE A SITUATION WHERE YOU CANNOT SAY, WITH ANY DEGREE OF CONFIDENCE, U SING STANDARD HARMLESS-ERROR ANAL YSIS , AT L EAST, THAT THIS SENTENCE WOULD HAVE BEEN THE SA ME, HAD THE TRIAL COURT HA D AN ACC URATE SCORE SHEET IN FRONT OF IT . NOW , THE QUESTION OF WHETHER YOU RAISE THAT ON DIRECT APPEAL OR WHETHER YOU RAISE THAT SOMETIME DOWN THE ROAD , IS A TRICKY QUESTION. I CERTAINLY WILL AD MIT, BUT , AGAIN

DO YOU HAVE ANY ALTERNATIVE TESTS FOR POSTCONVICTION PURPOSES , THAT IS NOT E ITHER WOULD-HAVE-BEEN OR COULD-HAVE-BEEN?

I DON'T . I HAVE THO UGHT ABOUT THIS AND I DON'T THINK THERE IS ONE.I DON'T SEE H OW YOU COULDCOME UP WITH ONE. A COULD -HAVE-BEEN IMPOSED TEST, IT SEEMS TO ME, CONFLICTS WITH BASIC HARMLESS ERROR. CERTAINLY A COULD -HAVE-BEEN IMPOSED TEST ON DIRECT APPEAL, CONFLICTS WITH DeGUILIO AND BASIC