JORGE CRUZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A resentencing hearing is necessary when a scoresheet error is corrected, even if the original sentence would be legal under the corrected scoresheet.
Appellant's scoresheet contained errors, leading to an incorrect sentence calculation. A successor judge corrected the scoresheet but refused to order…
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KLEIN, J.
We affirm appellant’s conviction, but reverse for resentencing. His scoresheet incorrectly included points for burglary of a dwelling even though he was convicted of burglary, and contained other errors.
Appellant moved to correct his sentence under rule 3.800(b)(2), and a successor judge corrected his scoresheet by reducing the total sentence points from 67.8 to 28.4, but refused to order a resentencing hearing. She reasoned that the five-year sentence originally imposed would not be an illegal sentence even under the corrected scoresheet.
We reverse based on Fortner v. State, 830 So. 2d 174 (Fla. 2d DCA 2002), in which the court held that a resentencing hearing was necessary under similar circumstances. The state argued in Fortner, as it does here, that the error was harmless, but the Second District disagreed, stating that the error could not be harmless unless the record conclusively shows that the trial court would have imposed the same sentence with the corrected score-sheet. As we noted, in this case a different judge corrected the scoresheet, and under Fortner, with which we agree, the error in not resentencing cannot be harmless.
The state cites Hummel v. State, 782 So. 2d 450 (Fla. 1st DCA 2001), in which the court interpreted Heggs v. State, 759 So. 2d 620 (Fla.2000) to find a scoresheet error harmless if the same sentence could have been imposed under a corrected scoresheet without a departure. The Second District, adhering to Fortner, certified direct conflict with Hummel in Anderson v. State, 865 So. 2d 640 (Fla. 2d DCA 2004). We disagree with Hummel.
We reverse for a resentencing hearing based on Fortner and Anderson and certify direct conflict with Hummel.
POLEN and GROSS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Anderson, 905 So. 2d 111 (Fla. 2005)…sents with an opinion. . The Second District again certified conflict with Hummel in Walker v. State, 880 So. 2d 1262, 1265 (Fla. 2d DCA 2004). In addition, the Fourth District Court of Appeal also has certified conflict with Hummel. Cruz v. State, 884 So. 2d 105 (Fla. 4th DCA 2004). . Anderson did not appeal, but did file a motion for reconsideration of the sentence under Florida Rule of Criminal Procedure 3.800(c), which was denied. . Such analysis generally does not apply where the defendant entered a p…
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Cooper v. State, 902 So. 2d 945 (Fla. 4th DCA 2005)…anscript of the re-sentencing hearing nor anything else in the record shows whether the trial court would have imposed the same sentence if it had had an accurate score sheet. Therefore, the error may not be deemed harmless. Id.; see Cruz v. State, 884 So. 2d 105, 106 (Fla. 4th DCA 2004). As in Fortner, the transcripts of the plea and sentencing hearings at bar do not indicate whether the trial court would have imposed the same sentences if it had had an accurate score sheet. Accordingly, the error cannot be…
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Jones v. State, 901 So. 2d 255 (Fla. 4th DCA 2005)…en used by the sentencing court. Id. at 642. In a case unavailable to the trial court at the time of its rulings, this Court has since expressed its position on the harmless error issue addressed in Hummel, Fortner, and Anderson. In Cruz v. State, 884 So. 2d 105 (Fla. 4th DCA 2004), this Court agreed with the Second District’s conception of the harmless error issue in Fortner and Anderson and certified direct conflict with Hummel. Id. at 106. Considering' this development, the State’s argument in favor of a…
Previewing 3 of 7 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)
- 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)
- Fortner v. State, 830 So. 2d 174 (Fla. 2d DCA 2002)