Can Defendant Challenge the Inclusion of Victim Injury Points In a Revocation Proceeding ?
In Stubbs v. State, 951 So. 2d 910 (Fla. 2d DCA 2007), the first conflict case, the Second District had for consideration a challenge to the accuracy of a Criminal Punishment Code (CPC) scoresheet that was prepared for Stubbs' first sentencing proceeding, in which he was placed on probation, and was subsequently used to determine his prison sentence after his violation of probation. Stubbs, 951 So. 2d at 911.
The trial court rejected Stubbs' claim made in the resentencing proceeding after revocation of probation, but the district court reversed. Id. at 911.
Citing a number of its earlier decisions, the Second District held that a defendant may challenge the inclusion of victim injury points in a revocation proceeding even when those points were not challenged at the original sentencing or on direct appeal. Id.
The Fourth District expressly aligned itself with Stubbs in the case of Bryant v. State, 37 So. 3d 269, 271 (Fla. 4th DCA 2009) (holding that a defendant may challenge the inclusion of sentencing points after violation of probation, including in a rule 3.800(b)(2) motion, even when the points were not challenged at the original sentencing or on direct appeal).