HARREL F. BRADDY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fourth District Court of Appeal reversed Braddy's thirty-year sentence imposed at resentencing, holding that the trial court erred by substituting a different guideline scoresheet category and adding previously unscored offenses at resentencing without justification, even though the final sentence did not exceed the agreed plea cap.
The court reversed, holding that the trial court erred both in substituting the category nine scoresheet and in adding prior offenses at resentencing. The errors were not harmless despite the sentence remaining within the cap because the trial court must use the same scoresheet and scoring presented at the time of the original plea, and there is a substantial distinction between correcting clerical errors and imposing a totally different basis for calculating guideline sentences.
[1] A trial court must use the same scoresheet and scoring presented at the time probation was imposed when resentencing following a violation of probation.
[2] A trial court errs by substituting a different guideline category scoresheet and adding prior offenses at resentencing over a defendant's objection.
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Join FLexlaw to unlock all legal intelligence“The trial court erred both by, at the state's request, substituting the category nine scoresheet and adding the prior offenses to the scoresheet at resentencing.”
Establishes the core holding that both the scoresheet substitution and addition of prior offenses constituted reversible error
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Join FLexlaw to unlock all legal intelligenceBraddy pleaded guilty to armed robbery, armed kidnapping, armed burglary, escape, and burglary, with a thirty-year sentence cap. At initial sentencing…
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STONE, Judge.
This court reversed appellant’s thirty year sentence in Braddy v. State, 520 So. 2d 660 (Fla. 4th DCA 1988). The sentence was imposed following a plea to a thirty year “cap” on charges of armed robbery, armed kidnapping, armed burglary, escape, and burglary. At the initial sentencing the scoresheet submitted was for guideline category three, using robbery as the primary offense.
However, at resentencing the trial court accepted, over the appellant’s objection, the substitution of the category nine scoresheet, the court treating the armed kidnapping as the primary offense at conviction. The state also expanded, over objection, the number of prior offenses scored by adding unresolved convictions, some of which remained on appeal.
The trial court again imposed a thirty year sentence.1 We reverse.
We initially note that the category three guideline sentence was incorrectly established as 12-17 years at the sentencing. The appellant concedes that through a clerical mistake the armed kidnapping was not initially scored as a felony punishable by. life. The correct category three guideline range therefore was 17-22 years. And upon remand, that is the guideline range to be considered. The trial court, implementing the plea terms on remand, has the discretion to impose a sentence in excess of the guidelines up to the thirty year “cap” upon a written finding of valid grounds to aggravate.
The trial court erred both by, at the state’s request, substituting the category nine scoresheet and adding the prior offenses to the scoresheet at resentencing.
The state argues that any error was harmless since the sentence imposed did not exceed the “cap” agreed upon. The state also asserts that the change in category of the scoresheet used is analogous to a clerical error in the first sentence in computing a guideline for resentencing. See generally Roberts v. State, 547 So. 2d 129 (Fla. 1989); State v. Chaplin, 490 So. 2d 52 (Fla.1986). Since the prejudice to appellant is apparent, we reject this argument. Even without scoring the additional offenses, the category nine guideline sentence range exceeds the thirty year cap. With the additional offenses scored, the recommended sentence is life.
This court has determined that on a sentencing following a violation of probation, the trial court must use the scoresheet and scoring presented at the time the probation was imposed. Graham v. State, 559 So. 2d 343 (Fla. 4th DCA 1990). There is no reason to apply a different principle here. We perceive a substantial distinction between a clerical error in scoring, which may be resolved from the face of the record, and a later imposition of a totally different basis for arriving at the guideline sentence including consideration of offenses which could not be scored initially. See Smith v. State, 536 So. 2d 1021 (Fla.1988); Harris v. State, 574 So. 2d 1211 (Fla. 2d DCA 1991); Pfeiffer v. State, 568 So. 2d 530 (Fla. 1st DCA 1990); Perez v. State, 561 So. 2d 447 (Fla. 5th DCA 1990).
Additionally the appellant had a right to expect the court to apply the same category scoresheet used at the time he entered the plea where the plea to the “cap” contemplated that appellant could argue for a guideline rather than an aggravated sentence.
There is no need to address the other sentencing issues raised which are now moot. The cause is remanded for resentencing.
GUNTHER, J„ and WALDEN, JAMES H., Senior Judge, concur. . The sentence was subsequently affirmed in Case No. 89-0368. However, habeas corpus relief resulted in this further review of the sentence.
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Evans v. State, 647 So. 2d 180 (Fla. 1st DCA 1994)…thirteen days after Evans’ two-year term of community control had expired. The state concedes error in this regard and we agree that the order of revocation and the convictions and sentences in Case No. 89-615 must be reversed. See Aguiar v. State, 593 So. 2d 1225 (Fla. 3d DCA 1992). No appeal lies from a judgment entered on a plea of nolo contendere without an express reservation of the right to appeal from a prior order of the lower court, identifying with particularity the point of law being reserved. Fl…
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Davis v. State, 623 So. 2d 579 (Fla. 3d DCA 1993)…n of the probationary-period. We agree. When a probationary period expires, the court is divested of jurisdiction over the probationer unless, prior to that time, the appropriate steps were taken to revoke or modify the probation. Aguiar v. State, 593 So. 2d 1225 (Fla. 3d DCA 1992); Purvis v. Lindsey, 587 So. 2d 638, 639 (Fla. 4th DCÁ 1991). If an affidavit of violation is timely filed, and is succeeded by an untimely affidavit which merely re-avers the allegations contained in the former, the re-averred all…
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McGRAW v. State, 700 So. 2d 183 (Fla. 4th DCA 1997)…things should have occurred before the probationary period expired — - either the filing of the affidavit of violation of probation with the clerk or the trial court’s issuance of the arrest warrant.1 See Carroll, 140 So. 2d at 301; Aguiar v. State, 593 So. 2d 1225 (Fla. 3d DCA 1992); Gardner v. State, 412 So. 2d 10 (Fla. 2d DCA 1981). The order of revocation of probation and sentence are reversed. GLICKSTEIN and POLEN, JJ., concur. . In Carroll v. Cochran, 140 So. 2d 300 (Fla.1962), the supreme court held…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Doyal Powell Roberts v. State, 547 So. 2d 129 (Fla. 1989)
- State v. Chaplin, 490 So. 2d 52 (Fla. 1986)
- Graham v. State, 559 So. 2d 343 (Fla. 4th DCA 1990)
- Harris v. State, 574 So. 2d 1211 (Fla. 2d DCA 1991)
- Riley Smith v. State, 536 So. 2d 1021 (Fla. 1988)
- Pfeiffer v. State, 568 So. 2d 530 (Fla. 1st DCA 1990)
- Harrel Braddy v. State, 520 So. 2d 660 (Fla. 4th DCA 1988)
- Perez v. State, 561 So. 2d 447 (Fla. 5th DCA 1990)