DAVID HYMAN A/K/A HENRY JASON HALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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David Hyman appeals his sentencing for violating community control and probation conditions. The trial court improperly assessed 24 community sanction violation points, effectively multiplying the points across two separate cases, when only 18 points were authorized under Florida law. The court reverses and remands for resentencing with the correct point assessment.
The trial court erred by assessing 24 community sanction violation points rather than 18. The law authorizes 12 points for the felony conviction resulting in continuation of supervision and 6 points for the subsequent non-felony violation, totaling 18 points. The trial court impermissibly multiplied the point assessment across two separate cases, and this error requires resentencing because the incorrect scoresheet resulted in a presumptive guidelines sentence of 59.8 months rather than the correct 53.8 months.
[1] A trial court may assess 12 community sanction violation points for a felony conviction resulting in a continuation of supervision and 6 points for a subsequent non-felon…
[2] A trial court impermissibly multiplies community sanction violation points by assessing them for each "count" or "case" covered by a sentence.
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Join FLexlaw to unlock all legal intelligence“The trial court is authorized to assess 12 community sanction violation points for Hyman's felony conviction of aggravated assault, which resulted in a continuation of supervision, and 6 community sanction violation points for the subsequent non-felony violation.”
Establishes the correct point allocation under the applicable rule and statute
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHyman was originally placed on probation for cocaine and drug paraphernalia possession convictions. He was subsequently convicted of aggravated assaul…
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BROWNING, J.
Appellant, David Hyman (Hyman), was originally placed on probation after convictions for possession of cocaine and drug paraphernalia. Subsequently, Hyman was convicted of a felony, aggravated assault. For this violation, Hyman’s probation was revoked, and he was sentenced to concurrent terms of community control to be followed by probation in both cases. Then, Hyman committed non-felony violations of his community control and was sentenced for the violations. For sentencing, the trial court assessed 24 community sanction violation points as urged by the State, contrary to Hyman’s position that only 18 community sanction violation points should be assessed. We agree with Hyman and reverse and remand for correction of Hy-man’s scoresheet and for resentencing.
The trial court is authorized to assess 12 community sanction violation points for Hyman’s felony conviction of aggravated assault, which resulted in a continuation of supervision, and 6 community sanction violation points for the subsequent non-felony violation. Fla. R.Crim. P. 3.703(17) (1998). The trial court, by assessing 24 community sanction violation points, impermissibly multiplied the assessment of community sanction violation points because there were two “counts” or “cases” against Hyman covered by the sentence. The statute and rule do not permit this. § 921.0024(l)(b), F.S. (1997); see also Brown v. State, 741 So. 2d 1242 (Fla. 1st DCA 1999) (on mot. for reh’g.).
The trial court’s error in assessing 24 community sanction violation points rather than 18 clearly prejudiced Hyman. Id. The trial court’s impermissible assessment of 24 points for scoresheet purposes effects a presumptive guidelines sentence of 59.8 months— the exact sentence imposed by the trial court. However, a correct assessment of 18 points by the trial court effects a presumptive guidelines sentence of 53.8 months. Because of the disparity between the two presumptive sentences, it cannot be said the trial court would not have imposed the lower presumptive sentence of 53.8 months, as authorized by the scoresheet, had 18 community sanction violation points been correctly assessed. In such case, the only appropriate remedy is resentencing by the trial court. Burrows v. State, 649 So. 2d 902, 903 (Fla. 1st DCA 1995); Canterbury v. State, 606 So. 2d 504 (Fla. 1st DCA 1992).
REVERSED and REMANDED for correction of Hyman’s scoresheet and for re-sentencing.
WOLF and DAVIS, JJ., CONCUR.
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Gonzales v. State, 779 So. 2d 520 (Fla. 2d DCA 2000)…(Fla. 2d DCA 1999); Carter v. State, 705 So. 2d 582 (Fla. 2d DCA 1997); Vitanzo v. State, 750 So. 2d 662 (Fla. 1st DCA 1999); Hayes v. State, 748 So. 2d 1042 (Fla. 3d DCA 1999); Campbell v. State, 745 So. 2d 399 (Fla. 1st DCA 1999); Hyman v. State, 744 So. 2d 566 (Fla. 1st DCA 1999); Spioch v. State, 742 So. 2d 817 (Fla. 5th DCA 1999); Jimerson v. State, 724 So. 2d 170 (Fla. 4th DCA 1998); Lane v. State, 722 So. 2d 288 (Fla. 5th DCA 1998). If we were correct in ordering resentencing for such errors when they…
Authorities Cited
- Burrows v. State, 649 So. 2d 902 (Fla. 1st DCA 1995)
- Normando R. Brown v. State, 741 So. 2d 1242 (Fla. 1st DCA 1999)
- Canterbury v. State, 606 So. 2d 504 (Fla. 1st DCA 1992)