CALVIN BUSH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 1992-03-31
No. 91-975
Before NESBITT, FERGUSON and LEVY, JJ.
596 So. 2d 511 Florida District Court of Appeal, Third District (1992) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that while the convictions and sentence are affirmed, the case must be remanded for correction of errors in the guidelines scoresheet and the recorded judgment.


Headnotes

[1] When sentencing under the habitual offender statute, two or more prior convictions entered on the same day are treated as a single offense.

[2] A negotiated plea bargain can serve as a clear and convincing reason for a departure sentence when it is an integral part of the bargain.

Previewing 2 of 4 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

Facts & Procedural History

Appellant was convicted of various charges, some by jury verdict and others pursuant to a negotiated plea bargain. He received a total sentence of nin…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

Calvin Bush appeals his convictions and sentence made pursuant to a negotiated plea bargain. We affirm the convictions and sentence, but remand for correction of errors in the guidelines scoresheet and recorded judgment.

On December 12, 1990, in case number 90-46248, appellant was charged with the following counts: (I) unlawful possession of a firearm by a convicted felon; (II) resisting a police officer without violence to his person; (III) tampering with witness; and (IV) aggravated assault. On that same date, in case number 90-46249, he was charged by a two count information with: (I) burglary of an unoccupied dwelling; and (II) grand theft third-degree. On January 1, 1991, in case number 90-48880, appellant was charged with: (I) burglary of an unoccupied dwelling; and (II) grand theft third degree.

A jury trial was held in case number 90-46248. The jury found Bush guilty of Counts II and IV. After a properly negotiated plea bargain, Bush pleaded guilty to all charges in the other two cases, and was sentenced to a total of nine years imprisonment, three years minimum mandatory, with entry of sentence as to Count II in case number 90-46248 suspended.

First, appellant claims that the trial court erred in determining that he was subject to a minimum mandatory three year sentence. Section 775.087(2)(a), Florida Statutes (1989) provides:

Any person who is convicted of:
1. Any murder, sexual battery, robbery, burglary, arson, aggravated assault, ... and who had in his possession a “firearm,” as defined in s. 790.001(6), or “destructive device,” as defined in s. 790.-001(4), shall be sentenced to a minimum term of imprisonment of 3 calendar years.

Appellant argues that it is unclear whether his aggravated assault conviction arose under section 784.021(l)(a) (1989), assault with a deadly weapon without intent to kill, or section 784.021(l)(b), assault with an intent to commit a felony. Appellant argues that the three year minimum mandatory applies only to section 784.021(l)(a), and because the jury failed to make any specific findings regarding whether appellant had a firearm in his possession, it was error to order the three years minimum mandatory sentence.

Second, appellant claims that the trial court erred in sentencing him as a habitual offender. See § 775.084(l)(a)l., Florida Statutes (1989). The scoresheet upon which the negotiated plea was based reflects seven prior convictions. However, these convictions were all entered on the same date, for burglary of seven mini warehouses located on the same premises, and accordingly, the scoresheet should have reflected a single prior conviction. See Shead v. State, 367 So. 2d 264, 266 (Fla. 3d DCA 1979) (two or more prior convictions, entered on the same day, are treated as one offense when sentencing under the habitual offender statute); see also Collazo v. State, 573 So. 2d 209 (Fla. 3d DCA 1991) (convictions entered on the same date, arising from the same criminal episode, are treated as a single offense); Walker v. State, 567 So. 2d 546 (Fla. 2d DCA 1990); Taylor v. State, 558 So. 2d 1092 (Fla. 5th DCA 1990); Lawley v. State, 556 So. 2d 430 (Fla. 1st DCA 1989). Because a plea bargain may serve as a clear and convincing reason for a departure sentence, when the departure reason was accepted as an integral part of the bargain itself, Smith v. State, 530 So. 2d 304, 305 (Fla.1988); Quarterman v. State, 527 So. 2d 1380, 1382 (Fla.1988); Thornburg v. State, 591 So. 2d 1121 (Fla. 1st DCA 1992), the sentence as imposed was proper notwithstanding appellant’s present objections. The trial judge properly noted in writing that this was a “negotiated upward departure” based upon a plea bargain as to the three cases. See Ree v. State, 565 So. 2d 1329, 1331 (Fla.1990), modified on other grounds, State v. Lyles, 576 So. 2d 706 (Fla.1991); see also § 921.-001(6), Fla.Stat. (1989); Fla.R.Crim.P. 3.701(b)(6), (d)(11).

After examination of the record, we are convinced that the trial court did not sentence appellant as a habitual offender, and would have properly imposed the same sentence notwithstanding the scoresheet error described herein. Rowe v. State, 523 So. 2d 620, 621 (Fla. 2d DCA 1988); Jacobs v. State, 522 So. 2d 540, 541 (Fla. 3d DCA), review denied, 531 So. 2d 1353 (Fla.1988). Nevertheless, on remand, the trial court should direct the preparation of a new guidelines scoresheet. See Cuthbert v. State, 459 So. 2d 1098, 1101 (Fla. 1st DCA 1984), review denied, 467 So. 2d 1000 (Fla.1985).

Finally, our review of the record has disclosed an inadvertent error in the recorded judgment requiring correction. The judgment erroneously reflects a suspended conviction for the unlawful possession of a firearm by a convicted felon, when, in fact, Bush’s jury conviction was for resisting a police officer without violence to his person. On remand, this error should also be corrected by the trial court. Id. at 1100-01.

Accordingly, we affirm the convictions and the sentence imposed, but remand to the trial court to prepare a new guidelines scoresheet and enter a corrected adjudication as to Count II.

Affirmed in part, vacated in part, and remanded.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • White v. State, 644 So. 2d 174 (Fla. 3d DCA 1994)
    …unt did not taint sentences as to other counts). The remaining sentences were lawfully entered pursuant to the plea agreement. See Quarterman v. State, 527 So. 2d 1380 (Fla.1988) (plea bargain sufficient basis for departure sentence); Bush v. State, 596 So. 2d 511 (Fla. 3d DCA), rev. denied, 604 So. 2d 486 (Fla.1992) (same). Finally, the trial court properly rejected defendant’s claim that his conviction and sentences violated his right to be free from double jeopardy. Those claims should have been raised i…
  • Ponder v. State, 643 So. 2d 121 (Fla. 3d DCA 1994)
    …PER CURIAM. Affirmed. See and compare White v. State, 531 So. 2d 711 (Fla.1988); Bush v. State, 596 So. 2d 511 (Fla. 3d DCA 1992).…

Authorities Cited (14 total)

View all 14 cited authorities →

Full citator, related cases, and AI research tools

Open in FLexlaw