PAUL T. PETERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Paul Peterson appealed his probation revocation and sentence, challenging both the sentencing guidelines scoresheet calculation and alleged probation violations. The appellate court reversed and remanded for resentencing, finding the scoresheet contained errors in how prior convictions were counted, though it upheld the probation violations based on Peterson's guilty pleas.
The scoresheet was erroneous in treating both counts as primary offenses; count I should have been reflected as a prior record item rather than as a separate primary offense, and there may have been error in doubling victim injury points. However, the probation violations were properly found because Peterson pleaded guilty to all charges. The case was reversed and remanded for resentencing.
[1] A sentencing scoresheet is erroneous if it reflects two primary offenses when the defendant was sentenced to prison on one and probation on the other.
[2] A prior conviction for which a defendant has served a prison sentence may be reflected on a sentencing guidelines scoresheet under prior record.
Previewing 2 of 6 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“Merely paying the penalty for a prior crime does not eliminate it from consideration in the guidelines scheme of things.”
Establishes that prior sentences can still be considered in sentencing guidelines calculations, but must be properly categorized.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn 1982, Peterson pleaded guilty to two counts of DWI manslaughter. He was sentenced to 7.5 years on count I and 10 years concurrent probation on coun…
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DANAHY, Chief Judge.
The defendant appeals an order of violation of probation and the judgment and sentence entered on the underlying crime.
In 1982 the defendant was charged with two counts of DWI manslaughter and pled guilty to both. He was adjudicated guilty and sentenced to seven and one-half years in prison on count I and to a concurrent ten-year term of probation on count II. The defendant was subsequently released from prison after serving three and one-half years with respect to count I, and continued his probationary term as to count II.
In 1986 an affidavit of probation violation was filed against the defendant charging eight separate violations. Following a hearing on the probation violation charges, the trial judge entered an order of revocation of probation reciting that the defendant had violated his probation as charged in every respect in the affidavit of violation. The defendant elected to be sentenced under the sentencing guidelines. He was sentenced to fifteen years imprisonment based on a guidelines scoresheet which reflected a recommended range of twelve to seventeen years.
On this appeal, the defendant first asserts that his sentencing scoresheet was incorrect because it reflected two primary offenses at conviction — presumably both counts of DWI manslaughter with which the defendant was charged in 1982. As the defendant points out, he was sentenced to prison in 1982 on count I and completed that sentence. Obviously, the guidelines scoresheet is erroneous. We ac cept the state’s proposition that count I be reflected on the guidelines scoresheet under prior record. We reject the defendant’s argument that his scoresheet should contain no reference to count I at all. Merely paying the penalty for a prior crime does not eliminate it from consideration in the guidelines scheme of things. State v. Northern, 503 So. 2d 1001 (Fla. 4th DCA 1987). However, there may be error in doubling the points for victim injury under “death or severe injury.”
Thus it appears that the correct point total would place the defendant’s recommended sentencing range below fifteen years. The defendant acknowledges that he made no objection to the scoresheet before the trial judge.
This is the situation addressed by the Florida Supreme Court in State v. Whitfield, 487 So. 2d 1045 (Fla.1986). There, the court held that when the impact of a sentencing scoresheet error is that the trial judge departed from the sentencing guidelines without making the required written, clear and convincing reasons for departure, the sentencing error may be considered on appeal even though there was no contemporaneous objection before the trial judge.
We note that in the Whitfield case, in order to facilitate the correction of such errors at the trial court level, the supreme court amended rule 3.800(a) to read as follows:
(a) A court may at any time correct an illegal sentence imposed by it or an incorrect calculation made by it in a sentencing guidelines scoresheet.
We note this rule change to point out that the defendant in this case could have made an appropriate motion to the trial judge to correct the sentencing guidelines score-sheet, rather than pursue the point on appeal.
As his second issue, the defendant claims that the trial judge erred in finding that the defendant had violated conditions 6 and 8 of his probation because there was not sufficient evidence before the trial judge to sustain a finding that the defendant had violated those conditions. The state counters that the defendant pled guilty to all of the probation violation charges and thus no issue was presented as to the sufficiency of the evidence with respect to any of the alleged violations. Having read the colloquy between the trial judge and the defendant at the probation revocation hearing, we agree with the state that the defendant clearly pled guilty to all of the charges of probation violation. We find no error as to this issue.
We reverse and remand for resentencing in accordance with this opinion.
SCHOONOVER and SANDERLIN, JJ., concur.
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Harrison v. State, 523 So. 2d 726 (Fla. 3d DCA 1988)…t charge. Fasenmyer v. State, 457 So. 2d 1361 (Fla.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1407, 84 L.Ed.2d 796 (1985). The murder conviction must instead be treated only as a prior offense in the guidelines calculation, see Peterson v. State, 506 So. 2d 94 (Fla. 2d DCA 1987), which in turn, must be based upon the guidelines in effect at the time of the offense, Miller v. Florida, — U.S.-, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), with the burglary charge treated as the primary offense. In making that co…
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Lopez v. State, 509 So. 2d 1334 (Fla. 3d DCA 1987)…eportation purposes between a guilty and a nolo plea, United States v. Dasher, 51 F.Supp. 805 (E.D.Pa. 1943), nor do Florida courts recognize a distinction for purposes other than reservation of the right to appeal a prior order, see State v. Lillo, 506 So. 2d 94 (Fla. 2d DCA 1987) ("convicted” as used in bookmaking statute includes nolo plea); Russell v. State, 233 So. 2d 148 (Fla. 4th DCA [*1336] 1970) (nolo plea construed same as guilty plea for all practical purposes). . Florida Rule of Criminal Procedu…
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Kilpatrick v. State, 516 So. 2d 56 (Fla. 2d DCA 1987)…s no evidence presented to show that he had committed the petit thefts. Because the appellant pled guilty to the charges of petit theft in the amended affidavit, it was not necessary that evidence of their commission be presented. Peterson v. State, 506 So. 2d 94 (Fla. 2d DCA 1987). [*58] The appellant asserts as his last argument that he was not provided advance notice and an opportunity to be heard on the imposition of court costs pursuant to sections 960.20 and 943.25, Florida Statutes (1985), as is requi…
Authorities Cited
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- State v. Northern, 503 So. 2d 1001 (Fla. 4th DCA 1987)