Cephus v. State
2010 Fla. App. LEXIS 19102
| Fla. Dist. Ct. App. | 2010Background
- Cephus pled guilty to armed robbery with a deadly weapon on Sept. 19, 2002 and received 30 months in prison plus four years of probation (F02-20250).
- While on probation in 2005, the State filed affidavits alleging probation violations including failure to report, lack of gainful employment, and residential change without consent.
- A second amended affidavit (June 5, 2006) added a new arrest for armed robbery with a firearm and aggravated battery (F06-17888).
- A probation violation hearing on Oct. 6, 2008 found violations on all counts save employment; sentencing was delayed to pursue a potential global plea.
- On Oct. 8, 2008 the court sentenced Cephus to 30 years in prison and five years’ probation in F02-20250, with the F06-17888 charges later nolle prossed; the State conceded sentencing error and the State sought resentencing on remand.
- The appellate court permitted defense counsel’s Anders-based withdrawal petition and, given the State’s confession of error, held that resentencing was required; the court affirmed the probation revocation but vacated the sentence and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cephus violated probation as charged | Cephus violated probation on multiple grounds | Cephus disputed certain grounds or their sufficiency | Yes, probation violation found on all grounds except employment |
| Whether the sentencing error required by the scoresheet warrants resentencing | State contends scoresheet correctly calculated; global plea not reached | Scoresheet error and improper inclusion of F06-17888 offenses | Yes; State conceded error and remand for resentencing |
| Whether ineffective assistance issue can be raised on direct appeal | Ineffectiveness should be raised postconviction; not on direct appeal | Direct appeal allowed exception when clear on record | Exception applied; ineffective assistance apparent on record; relief on direct appeal appropriate |
| Whether remand for resentencing is appropriate | Resentencing should address corrected sentencing range | Remand necessary due to error in sentencing calculation | Remand for resentencing with corrected scoresheet composition |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedural withdrawal standards for counsel on direct appeal)
- Smith v. State, 998 So.2d 516 (Fla.2008) (exception to need for postconviction relief on direct appeal)
- Blanco v. State, 507 So.2d 1377 (Fla.1987) (recognizing appellate consideration of ineffective assistance on direct appeal)
- Corvo v. State, 916 So.2d 44 (Fla.3d DCA 2005) (ineffectiveness on direct appeal where record shows prejudice)
- McMullen v. State, 876 So.2d 589 (Fla.5th DCA 2004) (direct-appeal ineffectiveness where prejudicial record is evident)