ELVIN LEE MOORE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The appellate court reversed a lower court's decision to reimpose a ten-year sentence for burglary. The court found that the trial judge erred by not preparing a new sentencing scoresheet after a robbery conviction was vacated, which is required for an upward departure sentence.
Yes, the trial court erred by imposing an upward departure sentence without a properly prepared scoresheet reflecting the remaining convictions. A new scoresheet is required to ensure an informed decision on departure.
[1] A trial court may not deviate from a sentencing guidelines sentence unless a scoresheet containing appropriate recommendations is available for its consideration.
[2] A trial court must have the benefit of a properly prepared scoresheet before it can make a fully informed decision on whether to depart from the recommended sentence.
Previewing 2 of 3 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“It is well-settled that a trial court may not deviate from the guidelines sentence unless a scoresheet which contains the appropriate recommendations is available for its consideration.”
Establishes the requirement for a valid scoresheet before departing from guidelines sentences.
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Join FLexlaw to unlock all legal intelligenceAppellant Moore was initially convicted of robbery, burglary, and battery, receiving a ten-year sentence. After the robbery conviction was vacated on …
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SCHWARTZ, Chief Judge.
Moore was convicted of robbery, burglary and battery and given an upward departure sentence of ten years. The judgment and sentence were affirmed in Moore v. State, 468 So. 2d 1081 (Fla. 3d DCA 1985), but on habeas corpus we vacated the robbery conviction and sentence. Moore v. Dugger, 504 So. 2d 493 (Fla. 3d DCA 1987).
After remand, the trial court merely set aside the robbery adjudication and sentence and noted, without benefit of a new guidelines scoresheet, that the ten-year sentence, now imposed only for burglary (with a concurrent one-year sentence for battery), remained unchanged. This was error. It is well-settled that a trial court may not devi ate from the guidelines sentence unless a scoresheet which contains the appropriate recommendations is available for its consideration. Tucker v. State, 464 So. 2d 211 (Fla. 3d DCA 1986), overruled on other grounds, State v. Whitfield, 487 So. 2d 1045 (Fla.1986); Davis v. State, 493 So. 2d 82 (Fla. 1st DCA 1986); Jaggers v. State, 492 So. 2d 418 (Fla. 1st DCA 1986).
In this case, the fact that no scoresheet was prepared without removing points for the inapplicable robbery conviction requires that Moore again be sentenced after the defect has been cured. This is because the trial court may well not wish to depart, or to depart so extensively, from a guidelines sentence which is presumably substantially lower than the one which it previously considered when it imposed the original ten-year term. See Davis, 493 So. 2d at 83 (“A trial court must have the benefit of a properly prepared scoresheet before it can make a fully informed decision on whether to depart from the recommended sentence.”).
Because it has been indicated that Moore has already been in prison longer than the recommended guidelines sentence, we dispense with rehearing, direct the immediate issuance of our mandate, and order that the resentencing hearing required by this opinion be conducted forthwith upon remand.
Reversed and remanded with directions.
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Citator
Cited By
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Jordan v. State, 728 So. 2d 748 (Fla. 3d DCA 1998)…, 83 (Fla. 1st DCA 1986). “This is because the trial court may well not wish to depart, or to depart so extensively, from a guidelines sentence which is presumably substantially lower than the one which it previously considered.... ” Moore v. State, 519 So. 2d 22, 23 (Fla. 3d DCA 1987); see also Mackey v. State, 703 So. 2d 1183, 1185 (Fla. 3d DCA 1997), review granted, No. 92,179, 719 So. 2d 284 (Fla. May 19, 1998); Rubin v. State, 697 So. 2d 161, 162 (Fla. 3d DCA 1997), review granted, No. 91,270, 721 So. 2…
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Rubin v. State, 697 So. 2d 161 (Fla. 3d DCA 1997)…it can make a fully informed decision on whether to depart from the recommended guideline sentence.” See Smith v. State, 678 So. 2d 1374, 1376 (Fla. 4th DCA 1996) (quoting Dawson v. State, 532 So. 2d 89 (Fla. 4th DCA 1988)); see also Moore v. State, 519 So. 2d 22, 23 (Fla. 3d DCA 1987); Davis v. State, 493 So. 2d 82, 83 (Fla. 1st DCA 1986). In light of the fact that [*163] we must remand this cause for Steven Rubin to be resentenced under a properly calculated score sheet, our need to address his further cha…
Authorities Cited
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- Davis v. State, 493 So. 2d 82 (Fla. 1st DCA 1986)
- Elvin Lee Moore v. State, 468 So. 2d 1081 (Fla. 3d DCA 1985)
- Tucker v. State, 464 So. 2d 211 (Fla. 3d DCA 1985)
- Jaggers v. State, 492 So. 2d 418 (Fla. 1st DCA 1986)
- W.R. Grace & Co. v. Multi Rest. Concepts, Inc., 504 So. 2d 493 (Fla. 3d DCA 1987)