WILLIAM J. DEPARVINE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Deparvine appealed his grand theft sentence after being convicted by jury. The court found that the sentencing guidelines scoresheet contained a calculation error that reduced the recommended sentencing range by two cells, requiring vacation of the sentence and remand for resentencing with the correct scoresheet.
The sentence must be vacated and remanded for resentencing because the scoresheet calculation error reduced the recommended range by two cells, and the trial court provided no indication it would impose the same sentence if apprised of the correct guidelines cell.
[1] A defendant's failure to object to a sentencing scoresheet calculation error at the trial court level does not preclude appellate review of the error.
[2] A sentencing scoresheet error is not harmless when the corrected point total results in a reduction of one or more guidelines cells.
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Join FLexlaw to unlock all legal intelligence“Where correction of a scoresheet calculation error would place a defendant in the same guidelines cell, or where the appellate court is clearly convinced that the defendant would have received the same sentence notwithstanding the error (i.e., a plea bargain), scoresheet error may be held harmless.”
Establishes the test for determining when scoresheet errors are harmless versus reversible
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Join FLexlaw to unlock all legal intelligenceDeparvine was convicted by jury of grand theft, a third-degree felony. The trial court used a guidelines scoresheet with 105 points, recommending a se…
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PER CURIAM.
William J. Deparvine has appealed from the sentence imposed after he was convicted of grand theft. We reverse, and remand for reconsideration of Deparvine’s sentence using a correct scoresheet.
As noted above, Deparvine came on for sentencing after he was convicted by jury of grand theft, a third-degree felony. § 812.014(2)(c), Fla.Stat. (1989). A guidelines scoresheet had been prepared reflecting a point total of 105, which corresponded to a recommended sentencing range of 5-V2 to 7 years, and a permitted range of 4-½ to 9 years. Deparvine did not object to the calculation, and the trial court sentenced him to 5 years, the statutory maximum for his offense. § 775.082(3)(d), Fla.Stat. (1989).
Deparvine argues that the correct point total was 77, which lowers the recommended and permitted sentence ranges by two cells to 3-⅛⅛ to 4-V2 years, and 2-⅞⅛ to 5-½ years, respectively. Deparvine notes that his failure to object below does not bar the issue on appeal, Burkhalter v. State, 578 So. 2d 345 (Fla. 1st DCA 1991), and that the error is not harmless, in that the corrected total does not correspond to the same guidelines cell. See Sellers v. State, 578 So. 2d 339 (Fla. 1st DCA), approved on other grounds 586 So. 2d 340 (Fla.1991). The state concedes that the correct point total was 77, and that Sellers requires vacation of the sentence and remand for reconsideration with a correct scoresheet.
Where correction of a scoresheet calculation error would place a defendant in the same guidelines cell, or where the appellate court is clearly convinced that the defendant would have received the same sentence notwithstanding the error (i.e., a plea bargain), scoresheet error may be held harmless. Sellers at 341. However, when deletion of improper points results in a reduction of one or more cells, the sentence will be vacated and the cause remanded for resentencing on a properly calculated scoresheet. Sellers at 341.
Here, correction to the proper point total reduces the recommended range by two cells. However, the corresponding permitted range still encompasses the 5-year sentence given by the trial court. When an appellate court is unable to say that the trial court, upon being apprised of the correct cell, would nevertheless impose the same sentence even though it falls within the permitted range of the correct cell, reversal is required. Johnson v. State, 583 So. 2d 386, 386-87 (Fla. 1st DCA 1991). A perusal of the sentencing transcript yields no indication of the trial court’s possible action “upon being apprised of the correct cell.” We therefore vacate the sentence imposed herein, and remand for resentencing on a properly calculated scoresheet.
JOANOS, C.J., and ALLEN and WOLF, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sprankle v. State, 662 So. 2d 736 (Fla. 2d DCA 1995)…ely demonstrates that the trial court would have given the same sentence had it known the correct score. See, e.g., Singleton v. State, 620 So. 2d 1038 (Fla.2d DCA 1993); Burrows v. State, 649 So. 2d 902, 904 (Fla. 1st DCA 1995); Deparvine v. State, 603 So. 2d 679 (Fla. 1st DCA 1992). The trial court must resentence SpranHe using a corrected scoresheet; see Sellers v. State, 578 So. 2d 339, 341 (Fla. 1st DCA), approved, 586 So. 2d 340 (Fla.1991), unless after reviewing the record or conducting an evidentiar…
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Burrows v. State, 649 So. 2d 902 (Fla. 1st DCA 1995)…ults in a reduced sentencing range of one cell or more, the sentence must be reversed and the case remanded for resentenc-ing based upon a correctly calculated score-sheet. Canterbury v. State, 606 So. 2d 504 (Fla. 1st DCA 1992); Deparvine v. State, 603 So. 2d 679 (Fla. 1st DCA 1992). Only where a corrected seoresheet would place the defendant in the same cell or where the appellate court is clearly convinced that the defendant would have received the same sentence regardless of the error (such as where the s…
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Desue v. State, 605 So. 2d 933 (Fla. 1st DCA 1992)…e speculative for us to assume that it would have done so had appellant’s scoresheet been correctly scored in the amount of 90 points. Sellers v. State, 578 So. 2d 339 (Fla. 1st DCA), decision approved, 586 So. 2d 340 (Fla.1991); Deparvine v. State, 603 So. 2d 679 (Fla. 1st DCA 1992). We therefore remand for resentenc-ing based on a properly calculated score-sheet. Desue next claims he was not given credit for two previous periods of jail time: 78 days that he served prior to the first order of revocation, a…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carter v. State, 586 So. 2d 340 (Fla. 1991)
- Louie Anthony Sellers v. State, 578 So. 2d 339 (Fla. 1st DCA 1991)
- Fernandez v. Efigenia Nancy Fernandez, 578 So. 2d 339 (Fla. 3d DCA 1991)
- Johnson v. State, 583 So. 2d 386 (Fla. 1st DCA 1991)
- Burkhalter v. State, 578 So. 2d 345 (Fla. 1st DCA 1991)