ERIC EBLIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eric Eblin was sentenced under the guidelines for first-degree armed burglary after accepting a plea agreement that would have subjected him to habitual offender sentences in other cases. The court erred by scoring the crimes for which he received habitual offender treatment as additional offenses on the armed burglary guidelines scoresheet, artificially inflating his sentencing range. The appellate court reversed and remanded for resentencing.
It is improper to score crimes for which a defendant receives habitual offender treatment as additional offenses when calculating a guidelines sentence for other cases sentenced at the same hearing. The error is not harmless because the use of an incorrect scoresheet places a defendant in a different sentencing cell, and the record must conclusively show the court would have imposed the same sentence using the correct score.
[1] Crimes for which a defendant receives habitual offender sentences cannot be scored as additional offenses when calculating the guidelines sentence for other cases heard c…
[2] A court will not presume an error in scoring a defendant's guidelines range is harmless unless the record conclusively shows the court would have imposed the same sentenc…
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Join FLexlaw to unlock all legal intelligence“When a defendant is being sentenced as a habitual offender for some cases and under the guidelines for other cases at the same hearing, it is improper to score the crimes for which he receives habitual offender treatment as additional offenses in calculating the guidelines sentence.”
Establishes the core legal rule violated in this case regarding double-counting of offenses
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Join FLexlaw to unlock all legal intelligenceEblin was charged with three separate burglary cases and accepted a plea agreement for concurrent 25-year habitual offender sentences in two cases. Fo…
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RYDER, Acting Chief Judge.
Eric Eblin was charged in three separate cases involving burglaries of dwellings. This appeal only concerns his sentence in one of the cases, No. 95^19-F, in which he was charged with first degree burglary while armed with a dangerous weapon. Eblin correctly contends that the court erred in scoring two crimes for which he received habitual offender sentences as additional offenses on the guidelines scoresheet for the armed burglary charge.
We reverse and remand for resentencing in Case No. 95-49-F. In order to resolve these three cases, Eb-lin accepted a plea under which he would be sentenced to three concurrent twenty-five-year terms as a habitual felony offender. In exchange, the state agreed not to pursue violent habitual felony offender treatment and not to charge him in other pending cases. At the time of sentencing, however, the state informed the court that Eblin could not be sentenced as a habitual offender for the armed burglary ease. The state incorrectly believed that a defendant charged with a first degree felony punishable by life was ineligible for habitual offender treatment. The court stated it would sentence Eblin in that case to “the mid-range of the guidelines.”
The two burglaries for which Eblin received habitual offender sentences were counted as additional offenses on the guidelines scoresheet for the armed burglary. The scoresheet showed a range of 67.5 to 112.5 months’ imprisonment. The court sentenced Eblin to 90 months’ imprisonment, the middle of the range. When a defendant is being sentenced as a habitual offender for some cases and under the guidelines for other cases at the same hearing, it is improper to score the crimes for which he receives habitual offender treatment as additional offenses in calculating the guidelines sentence. Smith v. State, 632 So. 2d 95, 96 (Fla. 2d DCA), appeal dismissed, 639 So. 2d 981 (Fla.1994); Ricardo v. State, 608 So. 2d 93 (Fla. 2d DCA 1992).
Had the two burglaries not been counted as additional offenses here, Eb-lin’s guidelines range would have been 54.9 to 91.5 months’ imprisonment. While his sentence does fall within the guidelines range using the correct scoresheet, this error is not harmless. As we said in Sprankle v. State, 662 So. 2d 736, 737 (Fla. 2d DCA 1995), when a correct scoresheet places a defendant in a different cell, we will not presume the error is harmless unless the record conclusively shows that the court would have imposed the same sentence if it knew the correct score. Here, in fact, the record indicates the trial court would have imposed a sentence in the middle of the correct range, not one at its uppermost reaches. We, therefore, reverse and remand for resentencing in accordance with this opinion.
We reject the state’s argument that the case should be remanded for sentencing under the plea agreement, which would allow the trial court to impose a habitual offender sentence in Case No. 95-49-F. While Eblin agreed to such a sentence, the prosecutor told the court that he could not be sentenced as a habitual offender for a first degree felony punishable by life. This was an incorrect representation. Burdick v. State, 594 So. 2d 267 (Fla.1992); State v. Smith, 597 So. 2d 319 (Fla. 2d DCA 1992). The prosecutor agreed that Eblin could be sentenced under the guidelines. The state cannot claim error in a ruling it invited the court to make. State v. Glosson, 462 So. 2d 1082, 1084 (Fla.1985). On remand, the court shall resen-tence Eblin under the guidelines.
Reversed and remanded.
DANAHY and FRANK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Olsen v. State, 791 So. 2d 558 (Fla. 2d DCA 2001)…ffender for some cases and under the guidelines for other cases at the same hearing, it is improper to score the crimes for which he receives habitual offender treatment as additional offenses in calculating the guidelines sentence.” Eblin v. State, 677 So. 2d 388, 389 (Fla. 2d DCA 1996). The State argues that any error was harmless because the sentence imposed could have been imposed without departure under a corrected guidelines scoresheet. The State points out a new scoresheet should include 120 victim in…
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Horton v. State, 696 So. 2d 460 (Fla. 1st DCA 1997)…were un-counseled. These claims therefore are procedurally barred. The second claim, relating to habitualized additional offenses, should be apparent from the face of the record and, if true, may entitle the appellant to some relief. Eblin v. State, 677 So. 2d 388 (Fla. 2d DCA 1996). We therefore affirm in part and reverse and remand in part for further proceedings on appellant’s claim relating to improper inclusion of habitualized offenses as “additional offenses” on the guidelines score-sheet. AFFIRMED IN…
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Mohn v. State, 723 So. 2d 873 (Fla. 2d DCA 1998)…ithin the range of a correctly prepared scoresheet, we have held that this type of sentencing error is not harmless unless the record conclusively shows the court would have imposed the same sentence if it knew the correct score. See Eblin v. State, 677 So. 2d 388, 389 (Fla. 2d DCA 1996); Sprankle v. State, 662 So. 2d 736, 737 (Fla. 2d DCA 1995.) Because the record in this case does not demonstrate what the court would [*874] have done, we reverse and remand for resen-tencing with a corrected scoresheet. Se…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Burdick v. State, 594 So. 2d 267 (Fla. 1992)
- State v. Boyce E. Glosson, 462 So. 2d 1082 (Fla. 1985)
- Ricardo v. State, 608 So. 2d 93 (Fla. 2d DCA 1992)
- Sprankle v. State, 662 So. 2d 736 (Fla. 2d DCA 1995)
- Owens v. Leisure Mgmt. Miami, Inc., 632 So. 2d 95 (Fla. 3d DCA 1994)
- State v. Smith, 597 So. 2d 319 (Fla. 2d DCA 1992)