CATALINO DIAZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a sentence must be vacated and remanded for resentencing when the sentencing scoresheet contains an error, even if the imposed sentence falls within the corrected range.
Catalino Diaz was convicted of attempted second-degree murder with a firearm and sentenced to 12 years. Diaz argued his sentencing scoresheet was inco…
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PER CURIAM.
Catalino Diaz was charged by information with attempted second-degree murder with a firearm and found guilty of the charge by a jury. He was adjudicated guilty and the cause was set for sentencing. The sentencing guidelines scoresheet scored Diaz’ conviction at the level of a first-degree felony punishable by life, and with recommended and permitted sentences of 12 to 17 years and 7 to 22 years, respectively. The court sentenced Diaz to the minimum recommended sentences, 12 years, enhanced with the minimum three-year term for use of a firearm. Diaz timely appealed.
Diaz’ sole argument on appeal pertains to the sentence imposed. At the sentencing hearing, Diaz contended that the guidelines scoresheet was incorrect. His argument was that the scoresheet categorized the crime committed, attempted second-degree murder, as a first-degree felony punishable by life, but that the crime was in fact a first-degree felony. The state concedes the guidelines calculation error. Diaz should have been scored at 136 sentencing points for the first-degree felony, plus 21 for victim injury, not 150 points for a first-degree felony punishable by life, plus the 21 points. Thus, the recommended sentence should have been 7 to 12 years, not 12 to 17 years.
While Diaz’ 12-year sentence falls within the corrected recommended range, we are unable to conclude from this record that Diaz’ sentence would have been the same had the trial court used a correctly calculated scoresheet. See Jaramillo v. State, 646 So. 2d 840 (Fla. 2d DCA 1994); Sellers v. State, 578 So. 2d 339 (Fla. 1st DCA), approved, 586 So. 2d 340 (Fla.1991).
Accordingly, we vacate the sentence under review and remand for resentencing with a properly calculated scoresheet.
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State v. Anderson, 905 So. 2d 111 (Fla. 2005)…. 4th DCA 1997) (holding that scoresheet error required reversal for re-sentencing because “we are unable to conclude that appellant’s sentence would have been the same had the trial court utilized a correctly calculated scoresheet”); Diaz v. State, 667 So. 2d 991, 992 (Fla. 3d DCA 1996) (“While Diaz’ 12-year sentence falls within the corrected recommended range, we are unable to conclude from this record that Diaz’ sentence would have been the same had the trial court used a correctly calculated scoresheet.”…
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Abdullah Shabazz v. State, 674 So. 2d 920 (Fla. 4th DCA 1996)…elve-year sentence falls within the permissive range of a properly calculated scoresheet, we are unable to conclude that appellant’s sentence would have been the same had the trial court utilized a correctly calculated scoresheet. See Diaz v. State, 667 So. 2d 991 (Fla. 3d DCA 1996); Jaramillo v. State, 646 So. 2d 840, 842 (Fla. 2d DCA 1994); Sellers v. State, 578 So. 2d 339, 340 (Fla. 1st DCA), approved, 586 So. 2d 340 (Fla.1991); cf. Huggins v. State, 537 So. 2d 207 (Fla. 4th DCA 1989). [*921] Accordingly,…
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Garcia v. State, 679 So. 2d 17 (Fla. 3d DCA 1996)…defendant based upon an incorrectly calculated scoresheet. Since the correct point total would have placed the defendant in the next lower cell, we reverse and remand for resentencing based upon a correctly calculated scoresheet. See Diaz v. State, 667 So. 2d 991 (Fla. 3d DCA 1996). Affirmed in part, reversed in part and remanded for resentencing. . Horn v. State, 677 So. 2d 320 (Fla. 1st DCA 1996); Gainer v. State, 671 So. 2d 240 (Fla. 1st DCA 1996); Berwick v. State, 671 So. 2d 232 (Fla. 1st DCA 1996); B…
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)
- Tipton v. Walt Gallagher as Orange Cnty. Sheriff, 646 So. 2d 840 (Fla. 5th DCA 1994)
- Efrain Jaramillo v. State, 646 So. 2d 840 (Fla. 2d DCA 1994)