GLEN GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A miscalculated scoresheet that leads the sentencing judge to believe the defendant falls within an incorrect recommended sentencing range requires resentencing.
Appellant was convicted of sexual battery. The scoresheet used for sentencing contained a calculation error, resulting in a higher point total than ac…
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PER CURIAM.
Appellant, Glen Green, challenges his conviction and sentence for sexual battery with force likely to cause serious personal injury. Although we affirm the conviction without further comment, we find it necessary to reverse the life sentence and remand for resentencing.
The record reveals a miscalculated score-sheet. When the points on appellant’s scoresheet are added they produce a total of 581 points instead of the 585 points that appears on the scoresheet. The correct total would place appellant in a cell that carries a recommended range of 27 to 40 years and a permitted range of 22 years to life. Because of the error, the sentencing judge was under the mistaken impression that appellant fell within a recommended range of life in prison that corresponds to the incorrect score of 585 points.
On appeal, the state asks us to affirm appellant’s life sentence and to disregard the miscalculated scoresheet. The state argues that the life sentence imposed was within the permitted range of the proper cell and that the sentencing judge indicated his desire to impose a life sentence in any case. We reject this argument because it ignores the significance of the recommended range as the starting point for guidelines sentencing.
The proper procedure for imposing a guidelines sentence requires the sentencing judge to consider the applicable recommended range before exercising his discretion to move into the permitted range. See Pla.R.Crim.P. 3.701(d)8. Of course, a mistake as to the applicable recommended range subverts this process and effectively places the sentence upon a faulty foundation. Such a mistake requires resentencing so that the judge can consider the proper recommended range before deciding whether it is necessary to resort to the permitted range.
Accordingly, appellant’s conviction is affirmed but the case is remanded for resentencing.
WIGGINTON, MINER and WOLF, JJ., concur.
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Peters v. State, 128 So. 3d 832 (Fla. 4th DCA 2013)…n the 1989 sentencing framework, “[t]he proper procedure for imposing a guideline sentence requires the sentencing judge to consider the applicable recommended range before exercising his discretion to move into the permitted range.” Green v. State, 569 So. 2d 888, 889 (Fla. 1st DCA 1990). Where, however, “extraordinary circumstances exist to ‘reasonably justify aggravating ... the sentence,’ ” Wemett v. State, 567 So. 2d 882, 886 (Fla.1990) (quoting Fla. R. Crim. P. 3.701(d)(ll)), a trial judge is empowered…
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Fredrick M. Lawrence v. State, 590 So. 2d 1068 (Fla. 5th DCA 1991)…e a departure sentence did not result); Lewis v. State, 574 So. 2d 245 (Fla. 2d DCA 1991), approved in State v. Worley, 586 So. 2d 338 (Fla.1991) (incorrect score not harmless error even though sentence still within permitted range); Green v. State, 569 So. 2d 888 (Fla. 1st DCA 1990) (court must consider recommended range before sentencing to permitted range; miscalculation requires remand even if sentence within permitted range). But see Arias v. State, 584 So. 2d 234 (Fla. 3d DCA 1991) (even without guideli…
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Terry v. State, 588 So. 2d 63 (Fla. 5th DCA 1991)…the defendant’s sentence of 8 years incarceration falls within the reduced permitted range, nevertheless, the scoresheet error should be corrected and not be viewed as harmless merely because a departure sentence did not result, see Green v. State, 569 So. 2d 888 (Fla. 1st DCA 1990). The sentence is vacated with directions that a correct scoresheet be prepared and the defendant be resentenced in accordance with that scoresheet and his plea agreement. JUDGMENT AFFIRMED; SENTENCE VACATED; CAUSE REMANDED. D…
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