NELSON PEREZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that while the scoresheet contained an error, the resulting sentence was still within the legal guidelines range.
[1] A trial court's denial of a motion to correct sentences under Florida Rule of Criminal Procedure 3.800(a) will be affirmed if no error is found, even if a scoresheet requ…
[2] Attempted second degree murder is a Level 8 offense under the sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceThe appellant challenged his sentence, arguing the scoresheet incorrectly categorized an offense. The trial court denied his motion to correct the sen…
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Perez appeals from the trial court’s denial of his motion to correct his sentences, pursuant to Florida Rule of Criminal Procedure 3.800(a). After two re-sentencing procedures, one based on Heggs v. State, 759 So. 2d 620 (Fla.2000), and the other based on the 1994 guidelines range, • the trial court let stand concurrent fifteen year sentences for attempted second degree murder with a firearm,1 and armed robbery,2 followed by fifteen years probation, and fifteen years probation consecutive to the probation on the other counts for shooting into an occupied vehicle.3 Perez was also sentenced to a three year minimum mandatory term for use of a firearm on both the attempted murder and armed robbery counts. We find no error, although we remand for correction of the scoresheet.
The scoresheet used at sentencing indicated that the attempted murder count was scored as a Level 9 offense, with a sentencing range of 109.0 to 182.7 months incarceration. The state agrees this was error. Attempted second degree murder is a Level 8 offense. Saylor v. State, 816 So. 2d 1254 (Fla. 5th DCA 2002); Galdamez v. State, 804 So. 2d 619 (Fla. 3d DCA 2002). Nor is it subject to the one level increase for use of a firearm during the Heggs window period. See Salters v. State, 758 So. 2d 667 (Fla.2000); Saylor. However, scoring the attempted second degree murder as a Level 8 offense does not change the result in this case. The charge of armed robbery with a firearm becomes the primary offense because it is a Level 9 offense. Fla. R.Crim. P. 3.704(d)(7). Thus scoring the attempted murder count as a Level 8 offense deletes only 1.2 points from Perez’s score, making his total sentencing points 173. That results in a guidelines maximum range of 181.25 months or 15.1 years incarceration. The 15 year prison sentence Perez received is therefore legal.
AFFIRMED; REMANDED for Correction of Scoresheet.
THOMPSON, C.J., and ORFINGER, J„ concur. . § 782.04(1)(a)(1), Fla. Stat. (1995)
. § 812.13(2)(a), Fla. Stat. (1995).
. § 790.19, Fla. Stat. (1995).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Anderson, 905 So. 2d 111 (Fla. 2005)…correct scoresheet before deciding whether to apply the permitted range and thus errors in scoring are not harmless”). Occasionally, however, where the change in the range was minimal, courts have found the error harmless. See, e.g., Perez v. State, 840 So. 2d 1179, 1180 (Fla. 5th DCA 2003) (remanding for a scoresheet correction only to delete 1.2 points from the score, reducing the maximum sentence from 182.7 to 181.25 months, where the defendant had been sentenced to 180 months); Eppert v. State, 712 So. 2d…
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Montoya v. State, 943 So. 2d 253 (Fla. 3d DCA 2006)…ted resulted in a change of the lowest permissible sentence from 66.3 months to 39.3 months, was harmless error not requiring resentencing where the defendant was sentenced to ten years and could have been sentenced to thirty years); Perez v. State, 840 So. 2d 1179, 1180 (Fla. 5th DCA 2003) (remanding for a scoresheet correction only to delete 1.2 points from the score, reducing the maximum sentence from 182.7 to 181.25 months); Eppert v. State, 712 So. 2d 461, 462 (Fla. 2d DCA 1998) (remanding for a two-point…
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Osterhoudt v. State, 182 So. 3d 16 (Fla. 5th DCA 2015)…e corrected since the scoresheet states that he entered a plea when, in fact, he was found guilty by a jury after a trial. The State agrees. As such, remand is appropriate in order to correct the defendant’s'scoresheet. See generally Perez v. State, 840 So. 2d 1179 (Fla. 5th DGA 2003) (remanding for correction of the score-sheet that listed the wrong offense level). AFFIRMED in part; REMANDED with instructions. ORFINGER, J. and HIGBEE, H.L., Associate Judge, concur. > -…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Salters v. State, 758 So. 2d 667 (Fla. 2000)
- Saylor v. State, 816 So. 2d 1254 (Fla. 5th DCA 2002)
- McKOWEN v. State, 816 So. 2d 1254 (Fla. 5th DCA 2002)
- Galdamez v. State, 804 So. 2d 619 (Fla. 3d DCA 2002)
- L & R Prof'l Nursing v. Echezarreta, 804 So. 2d 619 (Fla. 3d DCA 2002)