IRENE MCGREEVEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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McGreevey was sentenced to 66 months for aggravated child abuse after entering a no-contest plea. She appeals her sentence, claiming the trial judge improperly calculated her sentencing scoresheet by assigning points for 'moderate' rather than 'slight' injuries without allowing her to contest this factual determination.
The court held that when a defendant disputes hearsay statements used in computing a sentencing scoresheet, the state must produce corroborating evidence. The court further held that scoring errors are not harmless merely because the sentence falls within the range permitted by the guidelines; a trial judge must have a correct scoresheet before deciding whether to apply the permitted range and any deviation.
[1] A trial court must conduct an evidentiary hearing when a defendant disputes hearsay statements used in computing a sentencing scoresheet and requests corroborating eviden…
[2] A sentencing error is not harmless if the defendant's requested reduction would move the sentence to a lower sentencing cell within the applicable guideline range.
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“Once a defendant disputes hearsay statements used in computing a scoresheet, the state is required to produce corroborating evidence — here for moderate injury.”
Establishes the burden on the state to provide evidence supporting contested scoresheet facts
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Join FLexlaw to unlock all legal intelligenceMcGreevey was charged with aggravated child abuse and entered a no-contest plea shortly before trial. At sentencing, the defense objected to the score…
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W. SHARP, Judge.
McGreevey challenges her sentence of 66 months incarceration on the ground that she received an excessive score because the injuries she inflicted on the victim were “slight” rather than “moderate,” and she was given no opportunity to raise or contest this issue. We agree that an evidentiary hearing is necessary in this case and remand for that purpose.
McGreevey was charged with aggravated child abuse.1 Shortly before the trial was to begin McGreevey entered a plea of no contest. Defense counsel and counsel for the state agreed that the arrest/booking report contained sufficient facts to support entry of the plea. At the sentencing hearing, the defense challenged the scoresheet because the scoresheet included points for moderate injury, totalling 111.4 points. Had she been scored for slight injury, the total would have been 97.4 points.
However, the trial judge refused to rule on the objection. He said the objection had not been made in writing before the sentencing hearing and he was only prepared to proceed with the sentencing. Defense counsel explained he had just received the scoresheet. The trial judge said that any correction would have to be made by motion after sentencing.
The defense made a motion to correct the sentence, after the sentencing hearing. But this motion was denied without an evidentiary hearing. Once a defendant disputes hearsay statements used in computing a scoresheet, the state is required to produce corroborating evidence — here for moderate injury. Blanton v. State, 546 So. 2d 1181 (Fla. 5th DCA), cause dismissed, 551 So. 2d 460 (Fla.1989). See also Brown v. State, 632 So. 2d 1052 (Fla. 5th DCA 1994).
The state argues on appeal that this is a harmless error situation. McGreevey’s score of 111.4 points (including those assessed for moderate injury) translates to a recommended sentence of 83.4 months in prison, with a minimum of 62.3 months and a maximum of 104.2 months. Had slight injury been used in the calculation, the recommended sentence would have been 69.4 months, with a minimum of 52.5 months and a maximum of 86.75 months. The sentence she received was thus a possible sentence (without a departure) had she been given the benefit of the slight injury calculation.
Prior rulings from this court held that an error in the sentencing score is harmless if the reduction sought does not move the defendant to a lower guideline bracket or sentencing cell. See Holland v. State, 672 So. 2d 566 (Fla. 5th DCA), rev. denied, 678 So. 2d 338 (Fla.1996). However, since the guidelines were changed to permit sentences within a range of punishments and to permit a deviation of 25% up or down from the recommended sentence, we have held that a trial judge should have a correct scoresheet before deciding whether to apply the permitted range and thus such errors in scoring are not harmless. See Goodwin v. State, 600 So. 2d 1310 (Fla. 5th DCA 1992); Horne v. State, 593 So. 2d 309 (Fla. 5th DCA 1992); Lawrence v. State, 590 So. 2d 1068 (Fla. 5th DCA 1991); Terry v. State, 588 So. 2d 63 (Fla. 5th DCA 1991).
Accordingly, we affirm the judgment but quash the sentence and remand for an evidentiary hearing on the issue of slight versus moderate injury prior to sentencing.
AFFIRMED in part; REVERSED and REMANDED.
THOMPSON, J., concurs.
COBB, J., dissents without opinion.
. § 827.03, Fla. Sat. (1995).
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State v. Anderson, 905 So. 2d 111 (Fla. 2005)…tence. §§ 921.0014(2), .0016(1), Fla. Stat. (2003). Although under this system any change in the scoresheet changed the recommended sentence range, the district courts continued to use the would-have-been-imposed test. See, e.g., McGreevey v. State, 717 So. 2d 1111, 1112 (Fla. 5th DCA 1998) (stating that where a scoresheet error altered the permitted range of 62.3 to 104.2 months to a range of 52.5 to 86.75 months and the defendant was sentenced to 66 months, “[the] trial judge should have a correct scoresheet…
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Rager v. State, 720 So. 2d 1134 (Fla. 5th DCA 1998)…for the two Ohio convictions.6 Even though the sentence imposed is within the 25 percent variance permitted under a corrected score sheet, the trial court is required to have a correct score sheet before it on re-sentencing. See McGreevey v. State, 717 So. 2d 1111 (Fla. 5th DCA 1998). REVERSED and REMANDED FOR RE-SENTENCING UNDER A RECALCULATED SCORE SHEET. COBB, W. SHARP and GOSHORN, JJ., concur. . Paragraph 794.01 l(8)(b) of Florida’s sexual battery statute provides: Without regard to the willingness or…
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Patterson v. State, 724 So. 2d 640 (Fla. 2d DCA 1999)…n additional eighteen points to a defendant’s scoresheet for possession of a firearm where the sole underlying offense is carrying a concealed firearm. We do not find merit in the State’s argument that the error was harmless. See McGreevey v. State, 717 So. 2d 1111 (Fla. 5th DCA 1998). Judgment affirmed; sentence reversed and remanded for further proceedings consistent with this opinion. PARKER, C.J., and SALCINES, J., Concur.…
Authorities Cited
- Holland v. State, 672 So. 2d 566 (Fla. 5th DCA 1996)
- Fredrick M. Lawrence v. State, 590 So. 2d 1068 (Fla. 5th DCA 1991)
- Goodwin v. State, 600 So. 2d 1310 (Fla. 5th DCA 1992)
- Brown v. State, 632 So. 2d 1052 (Fla. 5th DCA 1994)
- State v. Zaiser, 546 So. 2d 1181 (Fla. 5th DCA 1989)
- Blanton v. State, 546 So. 2d 1181 (Fla. 5th DCA 1989)
- Silver Pines P'rs Ltd. v. The Resolution Tr. Corp., 588 So. 2d 63 (Fla. 5th DCA 1991)
- Terry v. State, 588 So. 2d 63 (Fla. 5th DCA 1991)
- Turner v. State, 593 So. 2d 309 (Fla. 4th DCA 1992)
- Horne v. State, 593 So. 2d 309 (Fla. 5th DCA 1992)