CARLOS CHERIZARD
v.
STATE OF FLORIDA
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Carlos Cherizard appeals the denial of his Rule 3.800(a) motion to correct an illegal sentence, arguing his home-invasion robbery with a firearm conviction was improperly classified as a life felony instead of a first-degree felony. The court affirms the denial of resentencing but remands for correction of the judgment to reflect the proper felony classification.
The court affirms the denial of Cherizard's motion for resentencing because the classification error is harmless—the trial court could have imposed the same thirty-year sentence under the correct first-degree felony classification. However, the court remands for correction of the judgment to properly classify the conviction as a first-degree felony punishable by life.
[1] A conviction for home-invasion robbery with a firearm, where a firearm was carried, is a first-degree felony punishable by imprisonment for a term of years not exceeding…
[2] A misclassification of a felony conviction in a judgment is harmless error if the sentencing court could have imposed the same sentence with the correct classification.
Previewing 2 of 4 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“If in the course of committing the home-invasion robbery the person carries a firearm or other deadly weapon, the person commits a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment . . . .”
Establishes the correct statutory classification for home-invasion robbery with a firearm as a first-degree felony, not a life felony
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Join FLexlaw to unlock all legal intelligenceCherizard was convicted after trial of home-invasion robbery with a firearm under section 812.135, Florida Statutes (2005). The trial court sentenced …
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LAMBERT, J.
Carlos Cherizard appeals the postconviction court’s order summarily denying his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. Cherizard argued that because his conviction for home-invasion robbery with a firearm was improperly reclassified as a life felony when he was first sentenced, he is entitled to be resentenced. As we briefly explain, we affirm the denial of Cherizard’s motion, but remand only for correction of the judgment to show the proper classification for this conviction.
Cherizard was convicted after trial of home-invasion robbery with a firearm, in violation of section 812.135, Florida Statutes (2005). 1 The trial court sentenced him to serve thirty years in prison, with a ten-year mandatory minimum provision based on the jury’s verdict specifically finding that Cherizard carried, displayed, used, threatened to use, or attempted to use a firearm during the commission of this crime. The judgment also classified this conviction as a life felony. Cherizard’s direct appeal of his judgment and sentences was affirmed without opinion. Cherizard v. State, 22 So. 3d 89 (Fla. 5th DCA 2009).
Cherizard correctly argued in the instant motion that his conviction for homeinvasion robbery with a firearm was improperly reclassified as a life felony, instead of the correct classification of first-degree felony punishable by up to life imprisonment. See § 812.135(2)(a) (“If in the course of committing the home-invasion robbery the person carries a firearm or other deadly weapon, the person commits a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment . . . .”).
In the denial order under review, the postconviction court recognized that this conviction should have been listed in the judgment as a first-degree felony punishable by life. Because our record does not indicate whether this correction has been made, we remand for correction of the judgment to show the classification of Cherizard’s homeinvasion robbery with a firearm conviction as a first-degree felony punishable by life.
We reject Cherizard’s other argument that because of this reclassification error in the judgment when Cherizard was first sentenced, he is now entitled to a new sentencing 1 Cherizard was also convicted of committing other crimes, which are not pertinent here. 2 hearing. The classification error described here is harmless because the trial court could have imposed the same thirty-year prison sentence if the judgment in the first instance had properly classified this conviction as a first-degree felony punishable by up to life imprisonment. See Muyico v. State, 50 So. 3d 1227, 1228 (Fla. 4th DCA 2011) (rejecting the appellant’s argument that he was entitled to a new sentencing hearing when his robbery with a firearm conviction was initially classified as a life felony instead of as a first-degree felony punishable by life and holding that “a classification error raised in a rule 3.800(a) motion, like a scoresheet error raised in a rule 3.800(a) motion, is harmless if the sentencing court ‘could have imposed’ the same sentence”).
Accordingly, we affirm the denial of Cherizard’s rule 3.800(a) motion, but we remand for correction of the judgment to show Cherizard’s conviction of home-invasion robbery with a firearm as a first-degree felony punishable by life.
AFFIRMED; REMANDED for correction of judgment.
EDWARDS and GROSSHANS, JJ., concur. 3