LEE WILSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant is entitled to be resentenced if the scoresheet used for sentencing was improperly calculated and it is not conclusively demonstrated that the original sentence would have been the same with a corrected scoresheet.
[1] A scoresheet is improperly calculated when a primary offense is erroneously listed as a higher level offense than it should be.
[2] A defendant is entitled to be resentenced when the scoresheet used for sentencing was inaccurately calculated.
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Join FLexlaw to unlock all legal intelligenceWilson pleaded guilty to robbery and was sentenced. Later, his sentence was set aside and he was resentenced without a habitual felony offender design…
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CANADY, Judge.
Lee Wilson appeals the summary denial of his motion to correct an error on the face of the scoresheet, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand. Wilson pleaded guilty to one count of robbery. He was subsequently sentenced as a habitual felony offender (HFO) to ninety-five months in prison. Wilson’s sentence was suspended and ordered to be served on two years of community control as a HFO. On December 17, 1997, Wilson pleaded guilty to violating his community control and he was sentenced as a HFO to ninety-five months in prison. On February 6, 2003, the trial court set aside the judgment and sentence issued on December 17, 1997, and resentenced Wilson to ninety-five months in prison, without the HFO designation.
Wilson claims his scoresheet was improperly calculated because it incorrectly scored his primary offense as a level nine offense when it should have been scored as a level eight offense. Wilson pleaded guilty to a violation of section 812.13(2)(b), Florida Statutes (1996). On the resentencing scoresheet, Wilson’s primary offense was erroneously listed as a violation of section 812.13(2)(a) and erroneously scored as a level nine offense. Wilson’s primary offense — a violation of section 812.13(2)(b) — should have been scored as a level eight offense. See § 921.0012, Fla. Stat. (1996). There is nothing in the record to conclusively demonstrate that Wilson would have received a sentence of ninety-five months under the corrected sentencing scoresheet. Therefore, Wilson is entitled to be resentenced using an accurate scoresheet. See Marty v. State, 865 So. 2d 656 (Fla. 2d DCA 2004); Anderson v. State, 865 So. 2d 640 (Fla. 2d DCA 2004); Walker v. State, 807 So. 2d 177 (Fla. 2d DCA 2002).
Accordingly, we reverse and remand for the trial court to resentence Wilson under a corrected scoresheet. As we did in Anderson, we certify direct conflict with Hummel v. State, 782 So. 2d 450 (Fla. 1st DCA 2001).
Reversed and remanded.
FULMER and KELLY, JJ., Concur.
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Citator
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Wilson v. State, 913 So. 2d 1277 (Fla. 2d DCA 2005)…tate v. Anderson, 905 So. 2d 111 (Fla.2005). This district currently applies the “would have” standard to determine if postconviction relief is available under rule 3.800(a). See Mathews v. State, 907 So. 2d 1291 (Fla. 2d DCA 2005); Wilson v. State, 877 So. 2d 27 (Fla. 2d DCA 2004). Under this standard, the trial court must grant postcon-viction relief unless the record establishes that the sentence “would have” been the same under a corrected scoresheet. Mathews, 907 So. 2d at 1291-92. Accordingly, we reve…
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Mathews v. State, 907 So. 2d 1291 (Fla. 2d DCA 2005)…eless requires the trial court to grant post-conviction relief pursuant to rule 3.800(a) unless the record conclusively demonstrates that the defendant would have received the same sentence under a correct [*1292] ed scoresheet. See Wilson v. State, 877 So. 2d 27 (Fla. 2d DCA 2004). Because the transcript of the sentencing hearing was not included in the record on appeal, we cannot determine whether the record conclusively demonstrates that Mathews would have received the same sentence under a corrected sc…
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McCOY v. State, 876 So. 2d 1243 (Fla. 3d DCA 2004)…ng 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…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- 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)
- Stagl v. Bridgers, 807 So. 2d 177 (Fla. 2d DCA 2002)
- Naughton v. State, 865 So. 2d 656 (Fla. 1st DCA 2004)
- Marty v. State, 865 So. 2d 656 (Fla. 2d DCA 2004)