JOHNNY F. GLANTON, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnny Glanton challenged the legality of his 1995 and 1996 sentences imposed for probation violations in a Rule 3.800(a) motion. The appellate court affirmed the denial of most claims but reversed and remanded because the trial court's guidelines calculation for the three-cell bump-up appeared erroneous, placing the 8-year sentence outside the permissible range.
The court held that the 1996 sentence violated the three-cell bump-up rule because the trial court's guidelines calculation was erroneous. When a sentence correction for guideline calculation error results in a lower cell, reconsideration is required even if the corrected sentence falls within the permitted range. Such errors are reviewable under Rule 3.800(a) when apparent on the face of the record.
[1] A motion to correct an illegal sentence under Rule 3.800(a) is reviewable when an erroneous guideline calculation is apparent on the face of the record.
[2] If a sentence correction due to a guideline calculation error results in a lower sentencing cell, reconsideration of the sentence is required even if the corrected senten…
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Join FLexlaw to unlock all legal intelligence“If a sentence correction brought about by a guideline calculation error results in a lower cell, reconsideration of the sentence is required even if, after the reduction, the sentence lies in the permitted range.”
Establishes the legal standard that guideline calculation errors require reconsideration regardless of whether the corrected sentence remains within a permissible range.
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Join FLexlaw to unlock all legal intelligenceGlanton was convicted of two counts of burglary in 1990 and sentenced to four years prison plus three years probation. After multiple probation violat…
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MICKLE, Judge.
Appellant challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm in part and reverse in part.
On April 16, 1990, appellant was convicted of two counts of burglary and was sentenced to four years in prison (Count I) followed by three years of probation (Count II). He completed service of the prison term and began serving probation. He subsequently violated probation and, on April 21,1993, was sentenced on Count II to two years of community control. Thereafter, he violated community control and, on October 10, 1995, was sentenced again to two years of community control, followed by one year of probation. He again violated community control and, on May 7, 1996, community control and probation were revoked and he was sentenced on Count II to eight years in prison.
In his rule 3.800 motion, he challenges the legality of his 1995 and 1996 sentences in several respects. The lower court correctly denied all of the claims specifically addressed in its order denying relief. However, the lower court failed to address appellant’s claim that the 1996 sentence exceeds the three-cell bump up permitted for the violations of probation. The record on appeal includes what appears to be a copy of the original guidelines scoresheet, with handwritten notations inscribed apparently for the purpose of calculating the sentence to be imposed upon the third violation of probation in 1996. The original total point score was 74, calling for a recommended sentencing range of 2it — 3K years of incarceration and a permitted range of community control or 1— years of incarceration (utilizing a 1989 Category 5 scoresheet form).1 A three-cell bump for the three violations of probation calls for a recommended range of 5]é — 7 years of incarceration and a permitted range of 4$ — 9 years of incarceration. The 8-year sentence imposed herein falls within this permitted range. However, it appears to us from our reading of the handwritten notations on the guidelines scoresheet that the trial court did indeed begin its bump-up count from a range one cell higher than the original cell, to wit: from the 91-106 point range rather than the 72-90 point range. The incorrect calculation placed appellant in the range of 7 — 9 years of incarceration; the correct three-cell bump-up range on the guidelines sheet used by the court would have been 5% — 7 years of incarceration. The 8-year prison term imposed would not have fallen within the correct range on the sheet used by the trial court.
If a sentence correction brought about by a guideline calculation error results in a lower cell, reconsideration of the sentence is required even if, after the reduction, the sentence lies in the permitted range. See e.g., Baldwin v. State, 679 So. 2d 1193 (Fla. 1st DCA 1996); Terrell v. State, 668 So. 2d 656 (Fla. 2d DCA 1996). Because the erroneous scoresheet calculation herein is apparent on the face of the record, it is reviewable under a rule 3.800 motion. See Owens v. State, 667 So. 2d 905 (Fla. 4th DCA 1996); Harris v. State, 659 So. 2d 345 (Fla. 1st DCA 1995).
As it appears to us from our reading of the scoresheet included in the record that the sentence imposed falls outside the permissible bump-up range, we must reverse and remand for resentencing utilizing a properly calculated scoresheet. If it is determined that appellant’s sentence does indeed fall within a higher range than permitted, appellant must be resentenced within the proper range. If, however, upon consideration of the record below (including any portions thereof not included in the instant record on appeal), the lower court is able to determine that the 1996 guidelines calculation was proper, and again denies appellant’s motion, it must attach those portions of the record conclusively refuting appellant’s claim.
In all other respects, the order denying relief is affirmed.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED with directions.
WEBSTER and BENTON, JJ., concur. . The original offense was committed on July 2, 1989.
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Richardson v. State, 719 So. 2d 39 (Fla. 2d DCA 1998)…xception explained below, we affirm the trial court’s order under review. Richardson raises a claim relating to score-sheet calculations which may be raised at any time under Florida Rule of Criminal Procedure 3.800(a). See, e.g., Glanton v. State, 705 So. 2d 945 (Fla. 1st DCA 1998)(stating that erroneous scoresheet calculation was apparent from the face of the record and therefore correctable under rule 3.800(a)). Even though Richardson styled her motion as having been brought via rule 3.850, it would be in…
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Tosco v. State, 724 So. 2d 1223 (Fla. 3d DCA 1998)…Johnson v. State, 702 So. 2d 247, 248 (Fla. 4th DCA 1997) (citing Fla. R.Crim. P. 3.800(a)). “Because the erroneous score-sheet calculation herein is apparent on the face of the record, it is reviewable under a rule 3.800 motion.” Glanton v. State, 705 So. 2d 945, 946 (Fla. 1st DCA 1998). Based on this reasoning, we reverse the order and remand for reconsideration of the motion on the merits. Reversed and remanded.…
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Lewis v. State, 719 So. 2d 924 (Fla. 1st DCA 1998)…ommended and permitted sentencing ranges would remain unchanged. Erroneous scoresheet calculations may be raised at any time pursuant to rule 3.800(a) as long as the alleged errors are apparent from the face of the record. E.g., Glanton v. State, 705 So. 2d 945 (Fla. 1st DCA 1998); Horton v. State, 696 So. 2d 460 (Fla. 1st DCA 1997); Baldwin v. State, 679 So. 2d 1193 (Fla. 1st DCA 1996). Appellant’s motion alleges that the errors of which he complains are apparent from the face of the record. In fact, the…
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
- Interamerican CAR Rental, Inc. v. The Est. OF Jamaul McCLOUD, 679 So. 2d 1193 (Fla. 3d DCA 1996)
- Miller Baldwin, Jr. v. State, 679 So. 2d 1193 (Fla. 1st DCA 1996)
- Terrell v. State, 668 So. 2d 656 (Fla. 2d DCA 1996)
- Owens v. State, 667 So. 2d 905 (Fla. 4th DCA 1996)
- Alcoma Packing Co. & Executive Risk Consultants v. Cowan, 659 So. 2d 345 (Fla. 1st DCA 1995)