MAJOR THORNTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Major Thornton appealed the denial of his Rule 3.800(a) motion for resentencing after pleading no contest to two counts of leaving the scene of an accident with injury or death. The court affirmed the trial court's decision to make his sentences concurrent but reversed in part because the sentencing scoresheet improperly included points for victim injury (already an element of the offense) and a capital felony conviction (not scoreable), requiring resentencing with a corrected scoresheet.
The court held that two errors in the scoresheet had merit: the forty-eight points for victim injury should not have been included because injury or death is an element of the primary offense, and the ninety-eight points for a capital felony conviction should not have been scored because capital offenses are not scoreable. These errors were not harmless because they placed Thornton in a different sentencing cell, and the record did not conclusively demonstrate the trial court would have imposed the same sentence with a corrected score.
[1] A trial court errs by including victim injury points on a scoresheet when injury is an element of the primary offense.
[2] A sentencing error is not harmless when a corrected scoresheet places the defendant in a different sentencing cell, unless the record conclusively demonstrates the same s…
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Join FLexlaw to unlock all legal intelligence“When Thornton's score is reduced by forty-eight points, the corrected scoresheet places him in a different sentencing cell. This error cannot be presumed to be harmless unless the record conclusively demonstrates that the trial court would have given the same sentence had it known the correct score.”
Establishes the standard for harmless error review when scoresheet calculation changes the sentencing cell.
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Join FLexlaw to unlock all legal intelligenceThornton entered an open plea of no contest to two counts of leaving the scene of an accident with injury or death in 1992 and was sentenced to two co…
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[*516] PER CURIAM.
Major Thornton appeals the denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Although the trial court agreed that Thornton was entitled to be resentenced to concurrent terms of imprisonment, it denied the motion in all other respects.
Thornton entered an open plea of no contest to two counts of leaving the scene of an accident with injury or death and was sentenced to two consecutive terms of five years’ imprisonment in 1992. In response to the motion under review, the trial court held a non-evidentiary hearing and ordered the sentences to run concurrently in accordance with Hoag v. State, 511 So. 2d 401 (Fla. 5th DCA), rev. denied, 518 So. 2d 1278 (Fla.1987). No other relief was granted. We hold that two of the four arguments presented in Thornton’s motion have merit and reverse in part and remand for resentencing using a corrected scoresheet.
In the order denying further relief upon rehearing, the trial court concedes that it was error to include forty-eight points on the scoresheet for victim injury; the primary offense had already been enhanced because injury or death is an element of the offense. Byrd v. State, 531 So. 2d 1004 (Fla. 5th DCA 1988); See Hendsbee v. State, 497 So. 2d 718 (Fla. 2d DCA 1986); Benedict v. State, 475 So. 2d 1000 (Fla. 5th DCA 1985). However, the court found the error to be harmless. The trial court is mistaken.
When Thornton’s score is reduced by forty-eight points, the corrected scoresheet places him in a different sentencing cell. This error cannot be presumed to be harmless unless the record conclusively demonstrates that the trial court would have given the same sentence had it known the correct score. Burrows v. State, 649 So. 2d 902, 904 (Fla. 1st DCA 1995); See Singleton v. State, 620 So. 2d 1038 (Fla. 2d DCA 1993); Deparvine v. State, 603 So. 2d 679 (Fla. 1st DCA 1992).
Additionally, Thornton points out that the scoresheet includes ninety-eight points for a prior conviction for first degree homicide. This conviction should not have been scored because a capital offense is not scoreable.1 See Stuart v. State, 536 So. 2d 363 (Fla. 2d DCA 1988); Norris v. State, 503 So. 2d 911 (Fla. 5th DCA 1987); Davis v. State, 493 So. 2d 82 (Fla. 1st DCA 1986). When the points for victim injury and for the capital felony are subtracted from Thornton’s scoresheet, his score places his presumptive sentence three cell levels lower. Accordingly, this case is remanded for the court to resentence Thornton in accordance with a corrected scoresheet. See Terrell v. State, 668 So. 2d 656 (Fla. 2d DCA 1996); Sprankle v. State, 662 So. 2d 736 (Fla. 2d DCA 1995); Sellers v. State, 578 So. 2d 339, 341 (Fla. 1st DCA), approved, 586 So. 2d 340 (Fla.1991). In all other respects, the denial of the motion is affirmed.
Affirmed in part, reversed in part, and remanded with directions.
DANAHY, A.C.J., and FRANK and PARKER, JJ., concur. . The issue is reviewable in the present case because, unlike the alleged error in Huffman v. State, 611 So. 2d 2, 3 (Fla. 2d DCA 1992), rev. denied, 620 So. 2d 761 (Fla.1993), the error is not harmless beyond a reasonable doubt.
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Martinez v. State, 692 So. 2d 199 (Fla. 3d DCA 1997)…by, the trial court. The calculation of the guidelines range is correct. Finally, the defendant argues that the trial court erred by scoring sixty points for victim injury, which is the score where death has resulted. Relying on Thornton v. State, 683 So. 2d 515 (Fla. 2d DCA 1996), defendant claims that the death of the victim cannot be scored because death or great bodily harm is an element of the offense of vehicular homicide. We disagree. Under the 1994 guidelines: “Victim injury” means the physical in…
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Carter v. State, 705 So. 2d 582 (Fla. 2d DCA 1997)…e defendant in a different cell, the error cannot be presumed to be harmless, unless the record conclusively demonstrates that the trial court would have given the same sentence had it known the correct score.” Id at 737; see also Thornton v. State, 683 So. 2d 515, 516 (Fla. 2d DCA 1996). We disagree with the state’s contention that the error was harmless. The record does not “conclusively” demonstrate that the trial court would have given Carter the same sentence if the scoresheet had been calculated prope…
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State v. Barber, 727 So. 2d 996 (Fla. 2d DCA 1999)…attorney filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct 1396, 18 L.Ed.2d 493 (1967).1 We reverse and remand for resentencing. In Wendt v. State, 711 So. 2d 1166 (Fla. 2d DCA 1998), this court receded from Thornton v. State, 683 So. 2d 515 (Fla. 2d DCA 1996), and held that victim injury points were properly assessed on a defendant’s score-sheet during sentencing for DUI-manslaughter and DUI-serious bodily injury. Accordingly, we reverse the sentence imposed below and remand for senten…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (16 total)
- 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)
- Davis v. State, 493 So. 2d 82 (Fla. 1st DCA 1986)
- Hoag v. State, 511 So. 2d 401 (Fla. 5th DCA 1987)
- Sprankle v. State, 662 So. 2d 736 (Fla. 2d DCA 1995)
- Burrows v. State, 649 So. 2d 902 (Fla. 1st DCA 1995)
- Byrd v. State, 531 So. 2d 1004 (Fla. 5th DCA 1988)
- Singleton v. State, 620 So. 2d 1038 (Fla. 2d DCA 1993)
- Hendsbee v. State, 497 So. 2d 718 (Fla. 2d DCA 1986)