WILLIAM C. SCHERWITZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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An erroneous scoresheet can be corrected to impose a more severe sentence after a violation of community control, even without affirmative misrepresentations by the defendant.
[1] A trial court may correct an erroneous sentencing scoresheet to impose a more severe sentence after a violation of community control, even in the absence of affirmative m…
[2] A defendant is not entitled to the benefit of a judicial error in the omission of prior convictions from a sentencing scoresheet.
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Join FLexlaw to unlock all legal intelligenceThe defendant violated community control, and the trial court sought to correct an erroneous scoresheet that had omitted prior convictions. The defend…
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COBB, Judge.
The issue here is whether an erroneous scoresheet can be corrected, resulting in a more severe sentence, after violation of community control in the absence of any affirmative misrepresentations to the court by the defendant. Cf. Goene v. State, 577 So. 2d 1306 (Fla.1991).
In Graham v. State, 559 So. 2d 343 (Fla. 4th DCA 1990), the Fourth District held that a trial court is without power to consider a corrected scoresheet under these circumstances. The Third District recently has come to a contrary conclusion in Roberts v. State, 611 So. 2d 58 (Fla. 3d DCA 1992):
The defendant cites to Graham v. State, 559 So. 2d 343 (Fla. 4th DCA 1990) for the proposition that a trial court is without power to consider a new score-sheet, over objection, containing prior convictions completely omitted from the original. The contention then is that the defendant be sentenced under a score- sheet that is simply not based upon the truth. Consequently, we do not agree with Graham because to follow it literally, the defendant receives the benefit of being sentenced under a scoresheet which mistakenly omits prior convictions. Neither the rules nor the substantive law justifies a defendant receiving the largesse of a judicial error. Since only one guidelines scoresheet may be used for each defendant covering all offenses pending before the court at sentencing, following the defendant’s argument permits him to escape the punishment meted out by the law.
Furthermore, since the defendant’s violation of probation triggered the resentencing, the defendant is not being sentenced for “precisely the same conduct,” and double jeopardy concerns do not come into play.
... Allowing the inaccurate scoresheet to stand unjustly benefits the defendant by allowing his prior convictions to pass unnoticed merely because they were mistakenly omitted the first time. (Citations omitted).
Roberts at 611 So. 2d 58, 59.
We agree with the rationale of the Third District and affirm the instant sentence. We acknowledge conflict with Graham.
AFFIRMED.
GOSHORN, C.J., and DAUKSCH, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Roberts v. State, 644 So. 2d 81 (Fla. 1994)…State, 559 So. 2d 343 (Fla. 4th DCA 1990). However, the Fifth District Court of Appeal recently relied on Roberts to hold that prior convictions omitted from the original score-sheet can be considered upon violation of probation. Scherwitz v. State, 618 So. 2d 793 (Fla. 5th DCA), review granted, 629 So. 2d 135 (Fla.1993). When Roberts was originally sentenced, he received the benefit of a mistake in his guidelines scoresheet. Now that he has committed a new crime and violated his probation, we see no reason…1 / 2
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State v. Marshall, 869 So. 2d 754 (Fla. 5th DCA 2004)…a court has the authority to correct a sentencing guideline scoresheet to include prior convictions that were mistakenly omitted from the original scoresheet, even though the error was made through no fault of defendant. See also Scherwitz v. State, 618 So. 2d 793 (Fla. 5th DCA 1993), approved, 644 So. 2d 85 (Fla.1994). The defendant in Roberts was the beneficiary of a mistake in his original guidelines scoresheet, just as Mr. Marshall is here. The Florida Supreme Court concluded that since the defendant had…
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Scherwitz v. State, 644 So. 2d 85 (Fla. 1994)…PER CURIAM. We have for review Scherwitz v. State, 618 So. 2d 793 (Fla. 5th DCA 1993), because of conflict with Graham v. State, 559 So. 2d 343 (Fla. 4th DCA 1990), on the issue of whether in resentencing a defendant after revocation of probation or community control, a court has authority to revise a guidelines s…
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
- Goene v. State, 577 So. 2d 1306 (Fla. 1991)
- Graham v. State, 559 So. 2d 343 (Fla. 4th DCA 1990)
- Roberts v. State, 611 So. 2d 58 (Fla. 3d DCA 1992)