GEOFFREY WAITS BUTLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Geoffrey Waits Butler appealed his sentencing after pleading guilty to multiple felonies. The Florida Court of Appeal reversed his sentence because the trial court improperly scored offenses of different degrees as primary offenses on the sentencing guidelines scoresheet, violating Florida sentencing guidelines rules.
The trial court erred by scoring felonies of different degrees as primary offenses. The third degree grand theft should have been scored as an additional offense. The error was not harmless because proper application of the guidelines would have resulted in a lower recommended sentencing range. The sentence was reversed and remanded for resentencing with a corrected scoresheet.
[1] A guidelines scoresheet must score each offense at conviction as the primary offense, with other offenses scored as additional offenses.
[2] A sentencing judge must utilize the guidelines scoresheet that recommends the most severe sentencing range.
Previewing 2 of 5 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“Thus, it was improper for the trial court to score felonies of different degrees as primary offenses.”
Establishes the core legal error—the trial court violated sentencing guidelines rules by treating offenses of different degrees as primary offenses on the same scoresheet form.
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Join FLexlaw to unlock all legal intelligenceButler entered guilty pleas to one count of dealing in stolen property (second degree felony), two counts of grand theft (third degree felony), one co…
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DIAMANTIS, Judge.
Defendant was charged in several cases with various offenses. Defendant entered a plea of guilty to one count of dealing in stolen property,1 two counts of grand theft,2 one count of petit theft,3 two counts of burglary of a dwelling,4 and one count of burglary of a structure.5 In exchange, the state entered a nolle prosequi on the remaining charges. Defendant was sentenced to a total of 5½ years incarceration followed by a total of thirty-five years probation. The total incarceration was within the “permitted range” of the guideline scoresheet used by the trial court. We reverse the sentence and remand.
Defendant appeals from his judgments and sentences and raises two sentencing issues, only one of which possesses merit. On defendant’s sentencing guidelines scoresheet, the trial court scored as primary offenses the dealing in stolen property offense, a second degree felony, and one of the grand theft offenses, a third degree felony. The scoresheet reflected a recommended range of years incarceration, and a permitted range of 21/a-51/2 years. Defense counsel objected to the scoring at sentencing. If the grand theft had been scored as an additional offense instead of as a primary offense, defendant would have fallen into the next lower recommended range of 2y2-3V2 years incarceration, with a permitted range of community control or I-4V2 years incarceration.
Florida Rule of Criminal Procedure 3.701(d)(3) defines “primary offense” as that offense at conviction which, when scored on the guideline scoresheet, recommends the most severe sanction. Rule 3.701(d)(3)a provides that a separate guidelines scoresheet shall be prepared scoring each offense at conviction as the “primary offense at conviction” with the other offenses and convictions as “additional offenses at conviction.” Rule 3.701(d)(3)b states that the guidelines scoresheet which recommends the most severe sentencing range shall be utilized by the sentencing judge. In the instant case, a category six scoresheet form was used (the scoresheet utilized for thefts, forgery, and other related offenses). The scoresheet forms contemplate multiple primary offenses of the same nature and degree. Thus, it was improper for the trial court to score felonies of different degrees as primary offenses. The third degree grand theft offense should have been scored as an additional offense.
The state contends that the error in the instant case is harmless. The state argues that if the two burglary of a dwelling offenses were scored as the primary offenses, defendant would have fallen into the same recommended range. This contention is incorrect. It is clear that the state is scoring the burglary of a dwelling offenses under the same category six scoresheet form used by the trial court. However, as we observed, that scoresheet is to be used only for thefts, forgeries, and other related offenses. When a burglary offense is scored as the primary offense at conviction, a category five scoresheet form must be used. See Fla.R.Crim.P. 3.988(e). If a category five scoresheet form is prepared with the two burglaries of a dwelling scored as the primary offenses, defendant would fall into the 2
/2-⅛⅜ year recommended range, with a permitted range of community control or I-4V2 years incarceration.
Accordingly, we reverse the defendant’s sentence and remand this cause to the trial court for preparation of a corrected guidelines scoresheet and for resentencing. However, because the trial court did not realize that it was imposing a departure sentence, on remand the trial court is permitted to consider whether departure is appropriate and, if so, to set forth valid, contemporaneous written reasons for departure. State v. Betancourt, 552 So. 2d 1107 (Fla.1989).
Judgments AFFIRMED; sentence REVERSED and cause REMANDED.
COBB and COWART, JJ., concur. . § 812.019(1), Fla.Stat. (1989).
. § 812.014(1), (2)(c), Fla.Stat. (1989).
. § 812.014(1), (2)(d), Fla.Stat. (1989).
. § 810.02(3), Fla.Stat. (1989).
. § 810.02(3), Fla.Stat. (1989).
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Pizarro v. State, 593 So. 2d 604 (Fla. 4th DCA 1992)…sed and remanded for the preparation of a corrected guidelines scoresheet. Because the trial court did not realize that it was imposing a departure sentence, the trial court may, on remand, consider whether departure is appropriate. Butler v. State, 579 So. 2d 327 (Fla. 5th DCA 1991). We find no reversible error in the remaining points on appeal. REVERSED AND REMANDED. LETTS, STONE and WARNER, JJ., concur.…
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Allen v. State, 580 So. 2d 339 (Fla. 5th DCA 1991)…his case apparently did not realize it was imposing a “departure” sentence, on remand, it may consider whether such a departure is warranted, and if so, set forth valid reasons for departure. State v. Betancourt, 552 So. 2d at 1108; Butler v. State, 579 So. 2d 327 (Fla. 5th DCA 1991). Accordingly, we vacate the sentences imposed in this case and remand for resentencing. Sentences VACATED; REMANDED. GOSHORN and GRIFFIN, JJ„ concur. . § 893.13(1)©, Fla.Stat. (1989). . § 893.13(l)(a)(l), Fla.Stat. (1989). .…
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Smith v. State, 641 So. 2d 976 (Fla. 4th DCA 1994)…or which the offender is convicted and are pending at conviction are additional offenses. Fla.R.Crim.P. 3.701(d)(4). The third-degree felony was erroneously scored as a primary offense, rather than included as an additional offense. Butler v. State, 579 So. 2d 327 (Fla. 5th DCA 1991). The scoresheet error affected the guidelines range, which when properly scored should have been twelve to seventeen years rather than the seventeen to twenty-two years scored. Fla.R.Crim.P. 3.988(g) Category 7 (1988). Because t…
Authorities Cited
- State v. Betancourt, 552 So. 2d 1107 (Fla. 1989)