RICHARD D. BUDD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a scoresheet error regarding community sanction violation points warrants resentencing when it's not clear the same sentence would have been imposed.
The defendant challenged the denial of postconviction relief, arguing counsel was ineffective for failing to object to scoresheet errors. One error in…
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DAVIS, Judge.
Richard D. Budd challenges the postcon-viction court’s denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of his first two claims without comment, but we affirm in part and reverse in part the denial of his remaining claim.
Budd argues that counsel was ineffective for failing to object to two scoresheet errors. First, Budd argues that his primary offense is incorrectly scored. The postcon-viction court was correct to deny this portion of the claim as successive, and we affirm without comment.
Second, Budd argues that he was scored eighteen community sanction violation points when he should have only received six because he only violated a community sanction once. According to Florida Rule of Criminal Procedure 3.703(d)(17), six community sanction violation points must be assessed for each successive violation that follows a continuation of supervision or the modification or revocation of it. However, the violation of multiple conditions or counts of a single community sanction does not constitute “successive violations” within the meaning of the rule. See Williams v. State, 720 So. 2d 590, 591 (Fla. 2d DCA 1998). The State candidly concedes the score-sheet error. Because the record does not conclusively show that the same sentence would have been imposed, particularly where the lowest permissible prison sentence was previously imposed, we reverse and remand for the postconviction court to resentence Budd pursuant to a corrected scoresheet. See State v. Anderson, 905 So. 2d 111, 118-19 (Fla.2005).
Affirmed in part, reversed and remanded in part.
ALTENBERND and WHATLEY, JJ., Concur.
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Citator
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Tundidor v. State, 221 So. 3d 587 (Fla. 2017)…harmless because [the defendant] was sentenced to the lowest permissible sentence under the incorrectly calculated scoresheet and nothing in the record conclusively shows the sentence would have been the same under an accurate one.”); Budd v. State, 939 So. 2d 1158, 1159 (Fla. 2d DCA 2006) (“Because the record , does not conclusively show that the same sentence would have been imposed, particularly where the lowest permissible prison sentence was previously imposed, we reverse and remand for the postconviction…
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Shorter v. State, 14 So. 3d 1063 (Fla. 2d DCA 2009)…ed.” Id. at 116. Based on our record, including the transcript of the sentencing hearing, we cannot say conclusively what the trial court would have done had the forty victim injury points not been included on the scoresheet. See id.; Budd v. State, 939 So. 2d 1158, 1159 (Fla. 2d DCA 2006). Thus, we reverse Shorter’s sentence and remand for resentencing based on a corrected score-sheet that does not include the forty victim injury points. Sentence reversed and remanded. DAVIS and WALLACE, JJ„ Concur.…
Authorities Cited
- State v. Anderson, 905 So. 2d 111 (Fla. 2005)
- Williams v. State, 720 So. 2d 590 (Fla. 2d DCA 1998)