FREDRICK M. LAWRENCE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lawrence appealed his sentencing on guidelines scoresheet grounds, claiming his guideline score was miscalculated. The trial court mistakenly assigned 53 points for third-degree felony burglaries when only 30 points were appropriate, inflating his score and recommended range. The appellate court agreed the scoresheet error was clear on its face and, because the error changed the recommended range, vacated the sentence and remanded for resentencing under a correct scoresheet.
The scoresheet error must be corrected and the sentence vacated and remanded for resentencing. Although the imposed sentence of 5½ years fell within the correct permitted range, appellate courts should not apply the harmless error doctrine when a scoresheet miscalculation changes the recommended range, because it is important that the trial court have a correct scoresheet before determining whether to depart from the recommended range.
[1] A sentencing guidelines scoresheet error that changes the recommended range requires remand for resentencing, even if the imposed sentence falls within the permitted rang…
[2] A sentencing issue involving a clear scoresheet error apparent on the record may be raised on appeal without a contemporaneous objection at sentencing.
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“The scoresheet error is clear on its face. This sentencing issue, then, is a question of law and may be raised on appeal without contemporaneous objection.”
Establishes that clear scoresheet errors are reviewable without waiver, allowing Lawrence to challenge the miscalculation on appeal.
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Join FLexlaw to unlock all legal intelligenceLawrence was convicted of lewd and lascivious assault upon a child (a second-degree felony, scored as the primary offense) and two burglaries of a str…
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PER CURIAM.
This is another sentencing guidelines scoresheet case.
The defendant was convicted of lewd and lascivious assault upon a child (§ 800.04(1), Fla.Stat.) and two burglaries of a structure (§ 810.02(3), Fla.Stat.). The guidelines scoresheet used at sentencing shows a recommended guideline range of ^hr-Qk years incarceration and a permitted range of 3Va-7 years. The defendant was sentenced under the guidelines to a total of 5V2 years incarceration. The defendant claims on appeal that his guideline score was miscalculated.
The lewd and lascivious assault offense was a second degree felony, and was properly scored as the primary offense on a category 2 scoresheet. The two burglary offenses were third degree felonies and scored as additional offenses. Although the scoresheet correctly designated the two burglary offenses as third degree felonies, 53 points were assigned, which would have been proper only if the burglaries were life felonies. The defendant should have been assessed only 30 points for the burglary offenses. See Fla.R.Crim.P. 3.988(b). The subtraction of the excess 23 points reduces the defendant’s guideline score from 231 to 208, and places him in the next lower range. Under a correct scoresheet, the recommended range would be 3½-4½ years, with a permitted range of 2½-5⅛ years.
The State claims that the defendant waived this issue by not presenting a contemporaneous objection at sentencing. Alternatively, the State argues that the defendant’s total guideline sentence of 5V2 years would fit within the correct permitted range, so any error would be harmless.
The scoresheet error is clear on its face. This sentencing issue, then, is -a question of law and may be raised on appeal without contemporaneous objection. See Merchant v. State, 509 So. 2d 1101 (Fla.1987) (failure to make contemporaneous objection to scoresheet error does not bar appeal where error is clear on record); Sharp v. State, 522 So. 2d 51 (Fla. 5th DCA 1988), rev. denied, 531 So. 2d 168 (Fla.1988). See also Fla.R.Crim.P. 3.800(a) (a court may at any time correct an incorrect calculation made by it in a sentencing guidelines scoresheet).
The scoresheet error did not result in a departure sentence since the defendant’s total guideline sentence fell within the correct permitted range. However, appellate courts have been reluctant to apply the harmless error test unless a scoresheet miscalculation does not change the recommended range. See, e.g., Ewing v. State, 526 So. 2d 1029 (Fla. 1st DCA 1988) (miscalculation caused by use of the wrong score-sheet which did not change the recommended range is harmless error). It is considered important that the trial court have a correct scoresheet before determining whether to apply the permitted range. See Terry v. State, 588 So. 2d 63 (Fla. 5th DCA 1991) (even where defendant’s sentence fell within the reduced permitted range, scoresheet error should be corrected and not viewed as harmless merely because 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 guideline points in question, defendant’s sentence was still within the permitted range so it should be affirmed).
Where a scoresheet error changes the recommended range, the sentence imposed, although within the permitted range, should be vacated and the cause remanded for resentencing upon a correct scoresheet to assure that a defendant was not sentenced and is not being confined because of a mistaken judicial impression based on an inaccurate guidelines score-sheet.
SENTENCE VACATED; CAUSE REMANDED.
W. SHARP, COWART and DIAMANTIS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Lyons v. State, 823 So. 2d 250 (Fla. 4th DCA 2002)…sanction, the trial court would still impose three years in prison. We, therefore, reverse and remand for the state to provide competent evidence of this prior conviction and for the court to resentence appellant accordingly. See Lawrence v. State, 590 So. 2d 1068 (Fla. 5th DCA 1991) (‘Where a scoresheet error changes the recommended range, the sentence imposed, although within the permitted range, should be vacated and the cause remanded for resentencing upon a correct scoresheet to assure that a defendant w…
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Oliver v. State, 75 So. 3d 349 (Fla. 1st DCA 2011)…d and the cause remanded for resentencing upon a corrected scoresheet “to assure that a defendant was not sentenced and is not being confined because of a mistaken judicial impression based on an inaccurate guidelines scoresheet.” Lawrence v. State, 590 So. 2d 1068, 1069-70 (Fla. 5th DCA 1991). Accordingly, the judgment of conviction is AFFIRMED; the sentence is REVERSED, and the case is REMANDED for resentencing based upon a corrected scoresheet. Further, the trial court is instructed to assess costs and fi…
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McGREEVEY v. State, 717 So. 2d 1111 (Fla. 5th DCA 1998)…rrect scoresheet before deciding whether to apply the permitted range and thus such errors in scoring are not harmless. See Goodwin v. State, 600 So. 2d 1310 (Fla. 5th DCA 1992); Horne v. State, 593 So. 2d 309 (Fla. 5th DCA 1992); Lawrence v. State, 590 So. 2d 1068 (Fla. 5th DCA 1991); Terry v. State, 588 So. 2d 63 (Fla. 5th DCA 1991). Accordingly, we affirm the judgment but quash the sentence and remand for an evi-dentiary hearing on the issue of slight versus moderate injury prior to sentencing. AFFIRMED i…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lewis v. State, 574 So. 2d 245 (Fla. 2d DCA 1991)
- Merchant v. State, 509 So. 2d 1101 (Fla. 1987)
- Keidrick Ewing v. State, 526 So. 2d 1029 (Fla. 1st DCA 1988)
- Green v. State, 569 So. 2d 888 (Fla. 1st DCA 1990)
- State v. Worley, 586 So. 2d 338 (Fla. 1991)
- Silver Pines P'rs Ltd. v. The Resolution Tr. Corp., 588 So. 2d 63 (Fla. 5th DCA 1991)
- Terry v. State, 588 So. 2d 63 (Fla. 5th DCA 1991)
- Sharp v. State, 522 So. 2d 51 (Fla. 5th DCA 1988)
- Notarianni v. Notarianni, 584 So. 2d 234 (Fla. 2d DCA 1991)