PAUL HARRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2000-10-06
No. 5D99-1425
HARRIS, PETERSON and GRIFFIN, JJ., concur.
771 So. 2d 565 Florida District Court of Appeal, Fifth District (2000) Positive Treatment
Cited by 12 cases

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Holding

The court held that the sentence imposed after a probation violation was illegal because a new, incorrect scoresheet was used instead of the original one, and the sentence exceeded the statutory maximum.


Headnotes

[1] When sentencing after a violation of probation, the trial court must use the original scoresheet to determine the appropriate sentence.

[2] A defendant's guideline sentence may be increased by one cell for each violation of probation.

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Facts & Procedural History

Paul Harris appealed his probation violation finding and the sentences imposed. He argued his original sentence was legal but his subsequent sentence …

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Paul Harris appeals the trial court’s finding that he violated the terms of his probation and the three consecutive sentences of five years incarceration subsequently imposed. We find merit only in his complaint that an illegal sentence was imposed after he was found to have violated probation.

Harris first asserts that his original sentence was illegal because two score-sheets were used. Normally, a court must use one scoresheet for all crimes before it if those crimes were committed at the same time. See Cook v. State, 645 So. 2d 436, 437 (Fla.1994).

In Norris v. State, 659 So. 2d 1352 (Fla. 5th DCA 1995), this Court stated that the failure to use two scoresheets when sentencing a defendant for two crimes, one occurring before January 1, 1994 and one occurring after January 1, 1994, constituted reversible error. See Wood v. State, 655 So. 2d 212 (Fla. 5th DCA 1995); see also Fla. Stat. § 921.001(4)(b)4 (1995) (“When a defendant is before the court for sentencing for more than one felony and the felonies were committed under more than one version or revision of the guidelines, each felony shall be sentenced under the guidelines in effect at the time the particular felony was committed”).

Harris’ crimes in counts I — III were committed between 1992 and July 1994, and his crimes in counts IV, VI, and VII were committed in July 1994.

Therefore, the trial court was correct in using two scoresheets at the original sentencing.

Harris also asserts that his current sentence is illegal because the court should have used the scoresheet that was prepared at the time he was originally sentenced to resentence him after he violated probation. He also claims that his current sentence is illegal because it ex ceeds the statutory maximum. When sentencing after a violation of probation, the trial court must use the original scoresheet to determine the appropriate sentence. See Parrish v. State, 617 So. 2d 1170, 1170 (Fla. 5th DCA 1993); Holloman v. State, 600 So. 2d 522 (Fla. 5th DCA 1992).

Normally, a defendant’s guideline sentence may be increased by one cell for each violation of probation. See Williams v. State, 594 So. 2d 273 (Fla.1992); Poore v. State, 531 So. 2d 161, 163 n. 1 (Fla.1988).

If probation is violated, the trial court may sentence the probationer to any period of incarceration permitted by the original guidelines range, including a one-cell increase for violation of probation, with credit for time served. See Franklin v. State, 545 So. 2d 851, 853 (Fla.1989).

No further increase or departure is permitted for any reason. See Lambert v. State, 545 So. 2d 838, 842 (Fla.1989).

Review of the scoresheet used in sentencing Harris after he violated probation indicates that a new scoresheet was prepared. The new scoresheet incorrectly includes Harris’ conviction for three counts of aggravated stalking (counts I, II, and III in the original sentencing). The original scoresheet did not contain these offenses because they were appropriately scored on a different scoresheet. The new scoresheet totaled 44.6 points which resulted in a permissible sentence of 12.45 to 20.75 months in the Department of Corrections. If the three counts of aggravated stalking are deducted, Harris’ scoresheet would have totaled 43.1 points resulting in a lesser permissible sentence of between 11.325 to 18.875 months for each of the three counts (counts IV, VI and VII).

Therefore, the maximum allowable sentence under the correctly calculated score-sheet on each count would be 18.875 months in the Department of Corrections for a total of 56.625 months minus any applicable credit for time served.

Harris also claims that his current sentence exceeds the statutory maximum and that he has already served more time than is permissible. Our - remand to the trial court for resentencing within the guidelines plus a one-cell bump will give the trial court the opportunity to correct the scoresheet-error, and to address Harris’ claim that he has already served more time than he would have received if he was properly sentenced.

Lastly, we note that Harris’ contention that the trial court erred in imposing consecutive, as opposed to concurrent, sentences is without merit in light of section 921.16(1), Florida Statutes (1994), which gives a court discretion in ordering the manner in which sentences are to be served.

We vacate Harris’ current sentence imposed following his violation of probation and remand for resentencing.

SENTENCE VACATED; REMANDED.

HARRIS, PETERSON and GRIFFIN, JJ., concur.


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Citator

Cited By

  • Adekunle v. State, 916 So. 2d 950 (Fla. 4th DCA 2005)
    …). The law is well-settled that following revocation of probation the trial court must use the original scoresheet used at the time the defendant was placed on probation. Jefferson v. State, 830 So. 2d 195, 198 (Fla. 4th DCA 2002); Harris v. State, 771 So. 2d 565, 567 (Fla. 5th DCA 2000), rev. denied, 790 So. 2d 1104 (2001); see also Roberts v. State, 644 So. 2d 81 (Fla.1994) (holding that in sentencing following revocation of probation the court must use the original scoresheet but can revise the scoresheet…
  • Bauer v. State, 944 So. 2d 484 (Fla. 5th DCA 2006)
    …PER CURIAM. AFFIRMED. See Harris v. State, 771 So. 2d 565 (Fla. 5th DCA 2000). THOMPSON, ORFINGER and TORPY, JJ., concur.…
  • Tyner v. State, 148 So. 3d 519 (Fla. 2d DCA 2014)
    …encing. As Tyner correctly notes, “the trial court may sentence [him] to any period of incarceration permitted by the original guidelines range, including a one-cell increase for violation of probation, with credit for time served.” Harris v. State, 771 So. 2d 565, 567 (Fla. 5th DCA 2000). Reversed and remanded for resentenc-ing. NORTHCUTT and LaROSE, JJ., Concur. . See Tyner v. State, 536 So. 2d 1167 (Fla. 2d DCA 1988); Tyner v. State, 491 So. 2d 1228 [*520] (Fla. 2d DCA 1986). . This court affirmed this…

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