STATE OF FLORIDA, APPELLANT,
v.
ANTHONY GERALD VIAMARI, APPELLEE
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Florida's state prosecution appealed a sentencing where the trial court refused to accept a corrected sentencing guidelines scoresheet that would have increased the defendant's presumptive sentence. The court reversed, holding that trial courts retain jurisdiction to modify sentences and accept corrected scoresheets prior to final sentencing pronouncement.
The trial court had authority to receive and consider the corrected scoresheet and was not required to accept the erroneous initial scoresheet. A sentence is not final until at the earliest the sentencing hearing is concluded, and until that moment the court retains jurisdiction to modify, vacate, correct, change, amend, alter or vary any earlier pronouncement of sentence.
[1] A trial court retains jurisdiction to modify a sentence until the sentencing hearing is concluded.
[2] A trial court may accept a corrected sentencing scoresheet presented before the imposition of sentence, even if an initial scoresheet was accepted by the court.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“pronouncement of a sentence is not final until, at the earliest, the sentencing hearing is concluded. Until that moment, the trial court "has jurisdiction to modify, vacate, correct, change, amend, alter or vary, increase or decrease, any earlier, in effect inchoate, pronouncement."”
Establishes the core holding that trial courts retain broad sentencing authority until the sentencing hearing concludes, and can accept corrected information at any point before final pronouncement.
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Join FLexlaw to unlock all legal intelligenceAfter the defendant tendered an open nolo contendere plea to several category 6 crimes, the state prepared an initial sentencing guidelines scoresheet…
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OTT, Judge.
The state made an error in preparing a sentencing guidelines scoresheet which resulted in appellee’s presumptive sentence being lower than it should have been. The error was discovered after appellee had tendered an open nolo conten-dere plea and the scoresheet had been accepted by the trial court, but prior to sentencing. The court refused to accept the correct scoresheet presented at the sentencing hearing.1 Sentence was imposed within the lower presumptive range. We reverse.
We believe the holding in Farber v. State, 409 So. 2d 71 (Fla. 3d DCA 1982), is applicable to the instant case. In Farber, the trial court orally announced a sentence of six years’ incarceration followed by four years’ probation. Following the oral pronouncement, the state advised the court that the defendant was entitled to some two and a half years’ credit for time served in a sex offender program. The court then announced a change in the sentence to ten years’ incarceration followed by five years’ probation.
The third district upheld the second sentence, noting that pronouncement of a sentence is not final until, at the earliest, the sentencing hearing is concluded. Until that moment, the trial court “has jurisdiction to modify, vacate, correct, change, amend, alter or vary, increase or decrease, any earlier, in effect inchoate, pronouncement.” Id. at 73.
The same rationale applies to the case before us. Appellee’s plea was not negotiated. Sentence had not been imposed. The trial court had the authority to receive and consider any new information bearing on the sentence, including the corrected scoresheet. This would be the case whether the error was a mathematical mis-computation, misinterpretation of a provision in the guidelines, or the omission of information from the scoresheet. If the first scoresheet had been erroneously high, no doubt the court would have accepted a second scoresheet reflecting a corrected, lower presumptive sentence.
Under the circumstances, the state concedes that appellee should be given the opportunity to withdraw his plea.
REVERSED and REMANDED for further proceedings.
BOARDMAN, A.C.J., and CAMPBELL, J., concur. . Defendant pled nolo contendere to several category 6 crimes. The initial scoresheet was prepared in reliance on a portion of the comment to rule 3.701(d)(5), Florida Rules of Criminal Procedure. The comment, appearing in the Sentencing Guidelines Manual prepared by the Sentencing Guidelines Commission, suggested that the scoring of prior convictions for similar offenses be limited to felonies. The comment was amended after preparation of the first scoresheet to delete this limitation. Said amendment was effective immediately. See R. Wesley, Director, Sentencing Guidelines Commission, Memorandum on Sentencing Guidelines Modification, Feb. 9, 1984. Neither the rule itself nor the committee notes thereto had limited scoring of similar offenses to prior similar felonies. It is logical to conclude that the comment in question was amended because it had misinterpreted the rule.
Because the supreme court does not adopt or approve the comments, we feel that said comments are merely "helpful hints” to attorneys and are not binding. As such, any argument that the amended comment was unconstitutionally applied retroactively is without merit.
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Bordeaux v. State, 471 So. 2d 1353 (Fla. 1st DCA 1985)…ommittee Notes as part of the official sentencing guidelines,1 “no such imprimatur has been accorded the Commission’s Comments.” Cuthbert v. State, 459 So. 2d 1098 at 1100, n. 2 (Fla. 1st DCA 1984). Further, the Second District, in State v. Viamari, 462 So. 2d 1154, 1155, n. 1 (Fla. 2d DCA 1984), stated that “[bjecause the supreme court does not adopt or approve the comments, we feel that said comments are merely ‘helpful hints’ to attorneys and are not binding.” Indeed, the “Comments” have apparently never be…
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Moore v. State, 538 So. 2d 123 (Fla. 1st DCA 1989)…eased the sentence to 48 months. This was not error. A trial judge can change or correct a sentence if the change or correction is made at the sentencing hearing, before the sentence is carried out or the defendant is incarcerated. State v. Viamari, 462 So. 2d 1154 (Fla. 2d DCA 1985); Farber v. State, 409 So. 2d 71 (Fla. 3d DCA 1982); Williams v. State, 365 So. 2d 201 (Fla. 1st DCA 1978). The Farber court, citing Williams, stated: In our view, “the pronouncement by the court of the penalty imposed upon the de…
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Colbert v. State, 518 So. 2d 448 (Fla. 2d DCA 1988)…since the scoresheet prepared under the guidelines in effect at the times of the offenses and the scoresheet prepared under the guidelines in effect at the time of resen-tencing have different tallies, one or both was wrong, citing State v. Viamari, 462 So. 2d 1154 (Fla. 2d DCA 1984), for the proposition that erroneously prepared scoresheets are not binding. The state requests remand for preparation of a new scoresheet. However, the state does not identify errors in the scoresheets, nor have we found any in th…
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- Farber v. State, 409 So. 2d 71 (Fla. 3d DCA 1982)