GEORGE BRADLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1985-09-13
Nos. 84-2311, 84-2346 and 84-2348
DANAHY, A.C.J., and SCHOONOVER and HALL, JJ., concur.
480 So. 2d 647 Florida District Court of Appeal, Second District (1985) Positive Treatment
Cited by 23 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that while the trial court erred in scoring offenses on the defendant's sentencing scoresheet, the error was harmless because proper scoring would result in the same recommended sentence range.


Headnotes

[1] Sentencing errors are reviewable on appeal even without a contemporaneous objection if the errors are apparent from the record.

[2] When multiple offenses are committed, a separate guidelines scoresheet must be prepared for each offense as the primary offense, with others scored as additional offenses…

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

Facts & Procedural History

Appellant's probation was revoked after he committed multiple offenses. The scoresheet used for sentencing contained inaccuracies regarding the classi…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

The motion for rehearing is granted. The opinion filed in this case on June 21, 1985 [10 FLW 1544], is withdrawn and the following opinion is substituted in lieu thereof.

PER CURIAM.

Appellant raises as error the inaccuracy of the scoresheet utilized to sentence him after revocation of his probation in three consolidated cases. He alleges that his previous offenses were erroneously scored as “prior record” rather than as “additional offenses at conviction.” We agree, but affirm because proper scoring of his offenses would result in a greater point total but the same recommended sentence.

On separate occasions, appellant committed three burglaries (two punishable as felonies of the second degree and one punishable as a felony of the third degree), and one grand theft of the second degree (punishable as a felony of the third degree). For each offense, adjudication was withheld and appellant was placed on probation.

After accepting appellant’s guilty plea to violations of probation, the trial judge revoked appellant’s probation and adjudicated him guiity on all counts.

The scoresheet in the record on appeal reflects a point total of 53 points, computed as follows:

Category 5: Burglary

I Primary offenses at conviction (1 third-degree felony) 20 points

III A. Prior record (2 second-degree felonies) 13 points

B. Prior convictions for Category 5 offenses (2x5 points) 10 points

IV Legal status at time of offense (constraint) ' 10 points

TOTAL 53 points

This point total corresponds to a recommended range of community control or twelve to thirty months’ incarceration. However, an increase of one cell upon revocation of probation pursuant to Florida Rule of Criminal Procedure 3.701(d)(14), re- suits in a recommended sentence range of two and one-half to three and one-half years. The trial judge sentenced appellant to concurrent terms of three and one-half years’ imprisonment. No objection to the sentence was raised before the trial judge.

The state contends that this issue has not been preserved for appellate review because appellant’s counsel failed to contemporaneously object to the sentence imposed. We disagree. Sentencing errors may be reviewed on appeal, even in the absence of a contemporaneous objection, if the errors are apparent and determinable from the record on appeal. See State v. Rhoden, 448 So. 2d 1013 (Fla.1984); Hart v. State, 464 So. 2d 592 (Fla. 2d DCA 1985); Ramsey v. State, 462 So. 2d 875 (Fla. 2d DCA 1985); Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984). In the case before us, the scoring inaccuracies are readily determinable from the record. See Parker v. State, 478 So. 2d 823 (Fla. 2d DCA 1985) [10 FLW 1859]; Whitfield v. State, 471 So. 2d 633 (Fla. 1st DCA 1985); Tucker v. State, 464 So. 2d 211 (Fla. 3d DCA 1985). Compare Dailey v. State, 471 So. 2d 1349 (Fla. 1st DCA 1985) (alleged scoresheet error which is evidentiary in nature may not be raised for first time on appeal).

Turning to the merits of this case, Florida Rule of Criminal Procedure 3.701(d)(3), in effect at the time of appellant’s sentencing, provides:

“Primary offense” is defined as the most serious offense at conviction. In the case of multiple offenses, the primary offense is determined in the following manner:
a) A separate guidelines scoresheet shall be prepared scoring each offense at conviction as the “primary offense at conviction” with the other offenses at conviction scored as “additional offenses at conviction.”

b) The guidelines scoresheet which recommends the most severe sentence range shall be the scoresheet to be utilized by the sentencing judge pursuant to these guidelines.

The trial judge did not comply with this rule when sentencing appellant. Only one scoresheet, rather than four, was prepared and submitted, and that scoresheet utilizes an incorrect primary offense. Additionally, as appellant argues, these errors were compounded when his other offenses were scored as “prior record” rather than as “additional offenses at conviction.”

While we agree that the trial judge committed error by utilizing an inaccurate scoresheet, we think such error is harmless in this case and does not warrant reversal. Our supreme court recently held that, on remand for resentencing, the trial judge must use the current guidelines rather than the guidelines which were effective at the time of the original sentencing. State v. Jackson, 478 So. 2d 1054 (Fla.1985) [10 FLW 564], Using the current guidelines and the factual scenario urged by appellant in his motion, we find that a corrected scoresheet under Category 5: Burglary would show:

I Primary offenses at conviction (1 second-degree felony) 40 points

II Additional offenses at conviction (3 third-degree felonies) 6 points

IV Legal status 10 points

TOTAL 56 points

Thus, utilization of an accurate score-sheet results in an even greater point total than that utilized in the inaccurate score-sheet to arrive at appellant’s recommended sentence. This new point total, however, corresponds to the same recommended sentence range.

Therefore, reversal and remand for re-sentencing would be a useless act and would serve no purpose. Dewberry v. State, 472 So. 2d 792 (Fla. 1st DCA 1985); Burney v. State, 402 So. 2d 38 (Fla. 2d DCA 1981). See Toney v. State, 456 So. 2d 559 (Fla. 2d DCA 1984).

Affirmed.

DANAHY, A.C.J., and SCHOONOVER and HALL, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (12 total)

  • Brown v. State, 508 So. 2d 522 (Fla. 2d DCA 1987)
    …ating that the additional 24 points are proper should be attached to the trial court’s order. Alternatively, if the 24 points did not affect the presumptive sentence, the error is harmless and Brown’s motion may properly be denied. Bradley v. State, 480 So. 2d 647 (Fla. 2d DCA 1985), petition for review dismissed, 486 So. 2d 595 (Fla.1986). Moreover, if Brown’s factual allegations prove to be correct from the record as it presently exists, the motion may nonetheless be denied without a hearing but only if the…
  • DeVILLE v. State, 529 So. 2d 319 (Fla. 2d DCA 1988)
    …ier offenses shall be scored as prior record. See The Florida Bar Re: Rules of Criminal Procedure, 482 So. 2d 311, 312 (Fla.1985). Prior to that change, the earlier offenses had been scored as additional offenses at conviction. See Bradley v. State, 480 So. 2d 647 (Fla. [*320] 2d DCA 1985). Upon remand, defendant’s scoresheet should be recalculated by scoring the 1982 convictions as additional offenses. Defendant also contends that the trial court erred in not entering a written order giving the reasons for…
  • Boston v. State, 481 So. 2d 550 (Fla. 2d DCA 1986)
    …ines would place him in a recommended range well in excess of the sum of the sentences which he has actually received from Judge Pack and Judge Reese. Therefore, under the circumstances, we find the error in this case harmless. See Bradley v. State, 480 So. 2d 647 (Fla.2d DCA 1985). Affirmed. SCHEB, A.C.J., and CAMPBELL, J„ concur.…

Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited (12 total)

View all 12 cited authorities →

Full citator, related cases, and AI research tools

Open in FLexlaw