MICHAEL ADEKUNLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2005-12-07
No. 4D05-3492
FARMER, SHAHOOD and GROSS, JJ., concur.
916 So. 2d 950 Florida District Court of Appeal, Fourth District (2005) Negative Treatment
Cited by 12 cases

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Holding

The court held that consolidating separate sentencing scoresheets after probation revocation was improper, and the case must be remanded to determine if this error resulted in an illegal sentence.


Headnotes

[1] Following revocation of probation, a trial court must use the original scoresheet used at the time the defendant was placed on probation.

[2] Consolidating separate sets of cases onto a single scoresheet for sentencing after probation revocation is improper when the cases were originally sentenced on separate s…

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Facts & Procedural History

Michael Adekunle appealed the denial of his motion to correct an illegal sentence, alleging errors in the scoresheets used for his 1997 and 1998 convi…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Michael Adekunle appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion. We affirm the denial of all of Adekunle’s claims except one of the claims that alleged a scoresheet error resulting in an illegal sentence.

Adekunle was sentenced under the 1994 sentencing guidelines in two separate sets of cases. In one proceeding, Adekunle was sentenced to two years incarceration followed by four years probation for three 1997 cases. A single scoresheet was prepared for sentencing on these offenses. In a separate proceeding using a different scoresheet, Adekunle was sentenced for two 1998 cases and given a concurrent punishment, two years incarceration followed by four years probation.

In 2000, the state alleged that Adekunle violated his probation by committing new substantive offenses. Following a hearing, Adekunle’s probation was revoked and he was sentenced to concurrent terms of fifteen years in prison on some of the counts and 10.5 years in prison on the other counts. The record available in this proceeding does not reflect whether the original scoresheets were used when imposing sentence on these separate sets of cases. Adekunle was subsequently acquitted of the new offenses that had constituted the basis for the violations of probation (VOP).

In 2001, Adekunle filed a motion to correct illegal sentence complaining of score-sheet errors. The trial court agreed that the scoresheet had included points for offenses for which Adekunle had not been convicted and ordered the state to prepare a corrected scoresheet. The state then prepared a corrected scoresheet that consolidated the two sets of cases on a single scoresheet. The most severe 1998 offense was listed as the primary offense and the 1997 offenses, along with the remaining 1998 offenses, were scored as additional offenses. Adekunle’s instarit motion claimed that this consolidated scoresheet resulted in a greater sentencing range than was available at the original sentencing proceedings for the 1997 and 1998 sets of cases.

We agree that the use of a consolidated scoresheet in this situation was improper. We cannot tell from the instant record whether this scoresheet error resulted in an “illegal sentence” and, therefore, remand for further proceedings on this-claim. See State v. Anderson, 905 So. 2d 111 (Fla.2005) (determining that the “would-have-been-imposed” standard is correct in a rule 3.850 motion for determining whether a scoresheet error requires resentencing but suggesting that a “could-have-been-imposed” standard would apply in a rule 3.800(a) motion).

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 to include prior offenses that were mistakenly omitted from the original scoresheet).

This rule is consistent with the probation statute which provides that following a revocation of probation the court may “impose any sentence which it might have originally imposed before placing the probationer on probation.” § 948.06(1), Fla. Stat. (1997) (emphasis added). The 1998 offenses could not have been included in the scoresheet used in sentencing Ade-kunle on the 1997 set of cases. We agree with Yourn v. State, 652 So. 2d 1228 (Fla. 2d DCA 1995), where the second district explained that where a defendant was being sentenced following revocation of six terms of probation the court “must look to the scoresheet used when the defendant was sentenced for each particular offense.” Id. at 1230 (emphasis added).

Adekunle’s situation is distinguishable from the one described in State v. Lamar, 659 So. 2d 262 (Fla.1995). In Lamar, the supreme court explained that when a probation violation is being sentenced simultaneously with a new offense, then two scoresheets are prepared (using each offense as the primary offense) and the scoresheet with the greatest sanction is then used for sentencing on both offenses. Adekunle was not being sentenced for a new substantive offense at his VOP sentencing. We note also that under Lamar, if the new offense is classified as the primary offense, then the VOP offense must be scored as “prior record” not as an “additional offense.” Id.

Following revocation of probation on' these two separate sets of cases, the trial court should have sentenced Adekunle using the original, separate scoresheets with additional points scored for a community sanction violation. See Fla. R.Crim. P. 3.703(d)(17). The 1997 cases should have been scored as “prior record” in the 1998 scoresheet.

We reverse and remand for proceedings consistent with this opinion and resentencing if necessary. See also Williamson v. State, 683 So. 2d 193, 194 (Fla. 1st DCA 1996) (holding that original scoresheet should have been used following VOP not a consolidated scoresheet which included a subsequent offense).

Reversed and Remanded.

FARMER, SHAHOOD and GROSS, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Sanders v. State, 35 So. 3d 864 (Fla. 2010)
    …iginal scoresheet used at the time the defendant was placed on probation” and that the trial court shall “impose any sentence which it might have originally imposed before placing the probationer on probation.” Id. at 235 (quoting Adekunle v. State, 916 So. 2d 950, 952 (Fla. 4th DCA 2005); § 948.06(1), Fla. Stat. (2000)). The Second District then concluded that scoring the third-degree felonies as additional offenses “would be the only possible way to ensure that Sanders faced upon the revocation of his proba…
  • Moses v. State, 13 So. 3d 490 (Fla. 4th DCA 2009)
    …of a violation of probation on which Moses was sentenced at the same time he was sentenced for a primary offense. We hold that the trial court correctly scored the VOP as an additional offense on the scoresheet, and we recede from Adekunle v. State, 916 So. 2d 950 (Fla. 4th DCA 2005), to the extent that it suggests that VOP offenses sentenced at the same time as a new, primary offense must be scored as a prior record and not as an additional offense. Moses was convicted of aggravated assault and placed on pr…
  • Stang v. State, 937 So. 2d 1170 (Fla. 4th DCA 2006)
    …inal plea specifically recognizes and agrees that, upon violation of his probation, he can receive an above-guidelines sentence equal to the probation portion of the split sentence. Id. at 253-54 (citations omitted). However, in Adekunle v. State, 916 So. 2d 950 (Fla. 4th DCA 2006), we reversed for improper use of a new score-sheet at sentencing subsequent to probation revocation. The rule requiring use of the original scoresheet “is consistent with the probation statute which provides that following a revo…

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