HOWARD LEE TESTERMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the grand theft conviction must be reversed because the trial court orally adjudicated guilt only for dealing in stolen property, and the sentencing scoresheet was incorrectly calculated.
Defendant was convicted of grand theft and dealing in stolen property. The trial court orally adjudicated guilt only for dealing in stolen property, b…
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LEHAN, Judge.
Defendant appeals his convictions and sentencing for grand theft and dealing in stolen property.
We reverse the conviction for grand theft. The trial court orally adjudicated defendant guilty of only dealing in stolen property. See Beal v. State, 478 So. 2d 401 (Fla. 2d DCA 1985).
We also reverse and remand for resentencing because, as explained below, the scoresheet total was incorrectly calculated. Defense counsel’s failure to object at sentencing does not foreclose appellate review. See State v. Whitfield, 487 So. 2d 1045 (Fla.1986).
Since, as we have said, defendant should not have been adjudicated guilty of grand theft, it was error to include three points on the scoresheet for that conviction. It was error to include 75 points under Section III-B for prior Category 6 offenses. As defendant argues, the scoresheet itself shows that defendant had only three prior felony convictions. Thus, out of the fifteen prior convictions scored as prior Category 6 offenses, only three could have been felonies. The others must have been misdemeanors, and it is improper to calculate prior misdemeanor convictions as same category offenses. Knight v. State, 501 So. 2d 150, 153 (Fla. 1st DCA 1987). Accordingly, instead of 75 points under Section III-B, defendant should have received under that section only fifteen points (three felonies times five points). After these corrections, defendant’s scoresheet apparently should total 118 points, which would result in a recommended sentence of five and one-half to seven years instead of the twelve to seventeen years used by the trial court in sentencing defendant to twelve years.
Reversed and remanded for resentencing in accordance with this opinion.
CAMPBELL, A.C.J., and FRANK, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Alfonzo Churchwell and Matthew Robinson v. State, 512 So. 2d 235 (Fla. 2d DCA 1987)…well one cell above the one in which a properly calculated scoresheet places him. Thus, Churchwell’s sentence is reversed. The trial court shall resentence him within the guidelines pursuant to a properly calculated scoresheet. Testerman v. State, 508 So. 2d 562 (Fla. 2d DCA 1987). In all other aspects Robinson’s and Churchwell’s judgments and sentences are affirmed. SCHEB, A.C.J., and PATTERSON, DAVID F., Associate Judge, concur.…
Authorities Cited
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- Beal v. State, 478 So. 2d 401 (Fla. 2d DCA 1985)
- Knight v. State, 501 So. 2d 150 (Fla. 1st DCA 1987)