124 So. 3d 1027
Fla. Dist. Ct. App.2013Background
- Craun pleaded guilty to one count of aggravated white collar crime (first-degree felony) and was sentenced to 30 years imprisonment; he later filed a rule 3.850 postconviction motion claiming ineffective assistance of counsel at sentencing.
- Craun and co-defendant Peterson were charged in a scheme selling worthless time‑share renter lists; both pleaded guilty initially but Peterson later withdrew his plea due to guideline miscalculation, so only Craun was sentenced.
- The State filed a sentencing memorandum recounting monitored jail calls and other conduct; much of the misleading-asset-transfer and continuing-scheme allegations in the memo were attributable to Peterson, not Craun.
- At sentencing the court relied on the memorandum and remarked that victims would not get restitution and that the defendant was continuing to commit crimes from jail, then imposed the statutory maximum (30 years) despite Craun’s scoresheet indicating a guidelines minimum of about 48.9 months.
- Craun argued his counsel was ineffective for failing to object when the court considered Peterson’s conduct and other improper factors; the postconviction court summarily denied relief, but the appellate court found counsel’s failure to object was deficient and remanded for resentencing before a different judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for failing to object when the sentencing court considered improper factors (co-defendant’s conduct and speculation about restitution/continuing crimes) | Craun: counsel should have objected to the court’s reliance on allegations and conduct attributable to Peterson and unsubstantiated speculation about inability/willingness to pay restitution | State: sentencing relied on memorandum and hearing; disputed connection between Craun and alleged ongoing scheme; postconviction court had summarily denied the claim | Court held counsel was ineffective for failing to object to the court’s consideration of improper factors; reversed the summary denial and remanded for resentencing before a different judge |
| Whether other ineffective-assistance claims warranted relief | Craun: raised additional sentencing and plea-related ineffective-assistance claims in 3.850 motion | State: defended summary denial; no separate argument detailed on appeal | Court affirmed resolution of Craun’s other claims without discussion |
Key Cases Cited
- Johnson v. State, 120 So.3d 629 (Fla. 2d DCA 2013) (ineffective-assistance claim cognizable where counsel failed to object to sentencing court’s consideration of improper factors)
- Nusspickel v. State, 966 So.2d 441 (Fla. 2d DCA 2007) (sentencing court may not rely on unsubstantiated allegations or speculation about other crimes)
- Doty v. State, 884 So.2d 547 (Fla. 4th DCA 2004) (same principle regarding improper consideration of other crimes at sentencing)
- Evans v. State, 979 So.2d 383 (Fla. 5th DCA 2008) (remand for resentencing by a new judge appropriate where postconviction relief for improper sentencing considerations is merited)