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940 So. 2d 604

Docket No. 2D06-1655.

Simpson v. State

Jeffrey W. SIMPSON, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided November 1, 2006.

District Court of Appeal of Florida · decided 2006-11-01

Relies on 905 So. 2d 111 - State v. Anderson · Spears v. State · Osadchuk v. Verkaik

Decided 2006-11-01

¶1NORTHCUTT, Judge.

¶2Jeffrey W. Simpson appeals the denial of his pro se motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand.

¶3Simpson was sentenced to eleven years in prison on a violation of probation in March 2005, stemming from convictions for crimes that occurred in 1993. In his rule 3.850 motion, Simpson claimed that his counsel in the probation revocation proceeding was ineffective for failing to review and seek correction of errors on his sentencing scoresheet. The postconviction court denied Simpson's motion, finding the record revealed that the trial court would have imposed the eleven-year sentence even if the scoresheet had been corrected. See State v. Anderson,905 So.2d 111 (Fla. 2005).

¶4While the postconviction court is correct that the "would-have-been-imposed" test is applicable to this case, see Wilson v. State,913 So.2d 1277 (Fla. 2d DCA 2005), the record attached to the order does not support the postconviction court's conclusion. Moreover, if Simpson's "corrected" scoresheet calculations are accurate, his eleven-year sentence constitutes a departure without written reasons. See Fla. R.Crim. P. 3.701(d)(11). Therefore, we reverse and remand for the trial court to either attach portions of the record that conclusively refute Simpson's claim or hold an evidentiary hearing on the issue. See Spears v. State,912 So.2d 694 (Fla. 2d DCA 2005).

¶5Reversed and remanded.

¶6SILBERMAN and LaROSE, JJ., Concur.

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