JOSEPH L. SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph L. Smith appeals his convictions and sentences for three new felonies committed while on probation in three prior cases. The court affirms the habitual felony offender convictions but vacates and remands two of the sentences for resentencing after finding the trial court erred in using a single scoresheet to sentence all six cases together.
The court affirms all convictions and affirms the sentences in cases 90-2238, but vacates and remands the sentences in cases 90-2062 and 90-2239 for resentencing using the original separate scoresheets with appropriate consideration for probation violation bump-ups. Although the court acknowledges the State's harmless error argument, it finds the error requires correction because shorter sentences may not always be subsumed by larger concurrent sentences due to the complexity and multiple attack opportunities in Florida's sentencing system.
[1] A sentencing scoresheet must accurately reflect the guidelines for all cases being sentenced, absent valid reasons for departure.
[2] Sentences imposed for violation of probation must be vacated if they do not reflect the sentencing guidelines, even if concurrent with a valid sentence.
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“The State concedes that the use of a new scoresheet to sentence Smith on the three cases enumerated above was error.”
Establishes that the trial court's fundamental sentencing error was admitted by the State, based on Holloman v. State.
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Join FLexlaw to unlock all legal intelligenceSmith was on probation in three cases (90-2062, 90-2238, and 90-2239) when he committed three new crimes. At sentencing, the trial court used a single…
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PETERSON, Judge.
Joseph L. Smith was on probation in three cases, 90-2062, 90-2238 and 90-2239, when he committed three new crimes. At sentencing, one scoresheet was used to score all six cases. The three new cases resulted in convictions and sentences as a habitual felony offender; we affirm those.
The State concedes that the use of a new scoresheet to sentence Smith on the three cases enumerated above was error. Holloman v. State, 600 So. 2d 622 (Fla. 5th DCA 1992); see also Parrish v. State, 617 So. 2d 1170 (Fla. 5th DCA 1993). It argues, however, that the error is harmless because Smith received no more than 15 years on the violation of probation cases and he could have received 21 years (consecutive sentences of seven years, the maximum permitted range with a bump-up in each of the three cases). The sentences actually received upon violation of probation were five years in 90-2238, 15 years in 90-2239 and 15 years in 90-2062, all sentences to be served concurrently with credit for time served. While the sentence in 90-2238 was within the seven year-guideline, the sentences in the other two cases were not and the sentences must be vacated. See Branam v. State, 554 So. 2d 512 (Fla.1990) (all sentences should reflect, or attempt to reflect, the guidelines as closely as possible unless valid reasons for departure are found).
The State also argues that the sentences imposed in the violation of probation cases are subsumed by the larger habitual felony offender sentences and any violation of the guidelines should be overlooked as harmless error. See Wilson v. State, 595 So. 2d 1102 (Fla. 5th DCA 1992) (departure sentence concurrent with legal sentence affirmed even though may be erroneous; error harmless since sentence would not extend beyond concurrent valid sentence). The problem with that view is that because of the many attacks upon convictions and sentences in Florida made possible by the complexity of the system, ultimately, shorter sentences may not be subsumed by the larger. The error can now be corrected while the focus is upon them.
All convictions are affirmed; the sentences in all lower court cases except for cases numbered 90-2062 and 90-2239 are also affirmed. The sentences in 90-2062 and 90-2239 are vacated and remanded for sentencing based upon the original scoresheets prepared in those cases with consideration given for appropriate “bump-ups” for violation of probation.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HARRIS, C.J., and DAUKSCH, COBB, W. SHARP, GOSHORN, GRIFFIN, DIAMANTIS and THOMPSON, JJ., concur.
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Citator
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Gonzales v. State, 816 So. 2d 720 (Fla. 5th DCA 2002)…prison were invalid and of no benefit to him. Nor do we agree with the argument that we should view this as mere harmless error because the thirty-year sentence for count five is concurrent with the two other valid 30-year sentences. Smith v. State, 629 So. 2d 281 (Fla. 5th DCA 1993). The calculation of gain time or other complexities unforeseeable in Florida’s penal code may be affected by this illegal sentence. Finally, Gonzales argues that a print out from the Department of Corrections indicates that the…
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Quinn v. State, 692 So. 2d 988 (Fla. 5th DCA 1997)…would not extend beyond the completion of the 36 months imposed in the 1996 case, any error was harmless because the correct 1995 sentence would be subsumed in the greater 1996 valid sentence. We disagree. This issue was addressed in Smith v. State, 629 So. 2d 281 (Fla. 5th DCA 1998) (en banc), in which we stated: The problem with that [harmless error] view is that because of the many attacks upon convictions and sentences in Florida made possible by the complexity of the section, ultimately shorter sentence…
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Sanchez v. State, 647 So. 2d 975 (Fla. 5th DCA 1994)…the record that would support her decision to deny the Rule 3.800(a) motion. The court’s stated reason for denial, that the scoresheet error is harmless in light of the valid sentence in 89-3769, has now been rejected by this court. Smith v. State, 629 So. 2d 281 (Fla. 5th DCA 1993). If the illegality of a sentence is properly brought to the court’s attention, it should be corrected even if it is unlikely to affect the amount of time the defendant is likely to be incarcerated. We remand for correction or a…
Authorities Cited
- Branam v. State, 554 So. 2d 512 (Fla. 1990)
- Parrish v. State, 617 So. 2d 1170 (Fla. 5th DCA 1993)
- Wilson v. State, 595 So. 2d 1102 (Fla. 5th DCA 1992)