CHRISTOPHER K. MCCOY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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McCoy appealed his conviction and 360-month sentence for armed robbery, challenging the sentencing scoresheet which erroneously included points for prior juvenile adjudications. The appellate court affirmed the sentence despite the scoresheet error, finding clear evidence the trial judge would have imposed the same sentence under a corrected scoresheet.
Affirmed without remand for resentencing. Although the scoresheet contained an error by including juvenile adjudication points, reversal is not required when it is clear from the record that the trial judge would have imposed the identical sentence even with a corrected scoresheet.
[1] A sentence will be affirmed despite an erroneous inclusion of points on a scoresheet if it is clear the trial court would have imposed the same sentence even with a corre…
[2] An appellate court need not remand for resentencing when an erroneous scoresheet calculation does not affect the sentence imposed, provided the trial court's intent to im…
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“The guidelines scoresheet erroneously included points for prior juvenile adjudications.”
Identifies the fundamental error in the sentencing calculation that McCoy challenged on appeal.
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Join FLexlaw to unlock all legal intelligenceMcCoy was convicted of armed robbery and related offenses and sentenced to 360 months imprisonment. The sentencing guidelines scoresheet contained an …
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SCHWARTZ, Chief Judge.
Of the issues presented in this appeal from a conviction and 360-month sentence for armed robbery and related offenses, none have merit. The only one which warrants discussion arises from the undisputed fact that the guidelines scoresheet erroneously included points for prior juvenile adjudications. See Bryant v. State, 626 So. 2d 1062 (Fla. 2d DCA 1993).
We do not require a new sentencing on this ground, however, because it is clear that the trial judge would have imposed the same sentence, which was well below the maximum permitted by both the correct and the incorrect scores, even upon a proper scoresheet.1 It is therefore unnecessary formally to choose between what we might otherwise think is the preferable view of the First District in Hummel v. State, 782 So. 2d 450 (Fla. 1st DCA 2001),2 that affirmance notwithstanding an excessive score is required unless it affirmatively appears that a remand would result in a lower actual sentence, and the conflicting position of the Second District in Anderson v. State, 865 So. 2d 640 (Fla. 2d DCA 2004) and Wilson v. State, 877 So. 2d 27 (Fla. 2d DCA Case no. 2D03-4313, opinion filed, May 28, 2004), that affir-mance results only when, as is true in this case, it is clear that the court would impose the same sentence if the scoresheet were corrected.3
Affirmed.
. The record of the sentencing establishes that the trial court deliberately chose the 360 month term as properly reflecting the term appropriate both for the defendant and the offense: To the extent that I didn't give the State their 474 or 457 state months, I'm hoping that, by the time Mr. McCoy turns in his late 30's early 40's, he will have gotten his GED, gotten alcohol counseling and at that time may be willing to be a useful member of society or not, in his 40's rather than his 50’s, as the State has desired.
. It seems to us that Hummel is in accordance not only, as the First District states, with Heggs v. State, 759 So. 2d 620 (Fla.2000), but with the general rule that it is the duty of the appellant to make harmful error clearly appear. . We may also observe that the differential in the permitted terms of imprisonment between the right and the wrong scoresheet appears to fall within the permissible percentage deviation suggested by Judge Altenbernd in his quasi-legislative view that the line between reversal and affirmance is to be drawn according to the magnitude of the mistake. See Anderson v. State, 865 So. 2d 640, 643-44 (Fla. 2d DCA 2004)(Altenbernd, C.J., concurring).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Cosby v. State, 913 So. 2d 93 (Fla. 5th DCA 2005)…me sentence had it known the correct score). In this case, the portion of the transcript addressing sentencing does not conclusively demonstrate that the trial judge would have imposed the same sentence with a correct scoresheet. Cf. McCoy v. State, 876 So. 2d 1243, 1243 & n. 1 (Fla. 3d DCA 2004) (describing the objectives the trial court expected the defendant to meet during his 360-month sentence). According to the incorrect scoresheet, Cosby’s minimum sentence was 23.25 months. However, under a correct sco…
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Thomas v. State, 905 So. 2d 159 (Fla. 3d DCA 2005)…ffect [*160] ed by the 1995 guidelines, resentencing using a corrected scoresheet for the burglary would not affect his overall sentence and would therefore be an exercise in futility. See State v. McBride, 848 So. 2d 287 (Fla.2003); McCoy v. State, 876 So. 2d 1243 (Fla. 3d DCA 2004); Richmond v. State, 867 So. 2d 449 (Fla. 3d DCA 2004); Hummel v. State, 782 So. 2d 450 (Fla. 1st DCA 2001). We therefore affirm the order under review. Affirmed.…
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Anderson v. State, 865 So. 2d 640 (Fla. 2d DCA 2004)
- Hummel v. State, 782 So. 2d 450 (Fla. 1st DCA 2001)
- IVY v. Moore, 782 So. 2d 450 (Fla. 1st DCA 2001)
- Wilson v. State, 877 So. 2d 27 (Fla. 2d DCA 2004)
- Keyvus T. Bryant v. State, 626 So. 2d 1062 (Fla. 2d DCA 1993)