GEORGE LESLIE RAY, III, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ray appeals his convictions for firearm possession by a convicted felon, cannabis possession, and drug paraphernalia possession, challenging the denial of his motion to correct sentencing error. The court affirms the convictions but reverses and remands for resentencing because the trial court erroneously included 15 sentencing points for firearm possession, reducing the proper point total from 47 to 42.4 and changing the presumptive sentence range.
The court affirms the convictions but reverses and remands for resentencing because the scoresheet error is not harmless. The record does not conclusively show the trial court would have imposed the same sentence with the correct scoresheet, as the corrected point total of 42.4 points (rather than 47) requires a presumptive sentence of any non-state prison sanction rather than imprisonment.
[1] A trial court errs in assessing additional sentence points for possessing a firearm when the sole underlying crime is possession of a firearm by a convicted felon.
[2] A scoresheet error is considered harmless on direct appeal if the record conclusively shows the trial court would have imposed the same sentence using a correct scoreshee…
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Join FLexlaw to unlock all legal intelligence“it is error for a trial court to assess additional sentence points for possessing a firearm where the sole underlying crime is possession of a firearm by a convicted felon”
Establishes the foundational rule that firearm enhancement points cannot be added when the only crime charged is firearm possession by a felon
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Join FLexlaw to unlock all legal intelligenceRay was convicted by jury of possession of a firearm by a convicted felon, possession of twenty grams or less of cannabis, and possession of drug para…
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PER CURIAM.
Appellant appeals his convictions, following a jury trial, for possession of a firearm by a convicted felon, possession of twenty grams or less of cannabis and possession of drug paraphernalia, and the denial of his rule 3.800(b)(2) motion to correct sentencing error. We affirm appellant’s conviction without comment, but reverse and remand for appellant to be resentenced pursuant to a properly calculated score-sheet.
While his appeal was pending, appellant filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), asserting that the scoresheet erroneously included fifteen points for possession of a firearm. The state concedes that the trial court erroneously scored the fifteen points for the possession of a firearm during the commission of a crime. See White v. State, 714 So. 2d 440 (Fla.1998) (holding that it is error for a trial court to assess additional sentence points for possessing a firearm where the sole underlying crime is possession of a firearm by a convicted felon). Without the fifteen points for the firearm the appellant’s total sentencing points are 42.4, rather than the 471 scored on his erroneous scoresheet.
When a scoresheet error is raised on direct appeal via a rule 3.800(b) motion, courts must apply the “would-have-been-imposed” test to determine whether a scoresheet error warrants resentencing. Brooks v. State, 969 So. 2d 238, 241-42 (Fla.2007) (citing State v. Anderson, 905 So. 2d 111 (Fla.2005)). Under the “would-have-been-imposed” test, scoresheet error is considered harmless if the record conclusively shows that the trial court would have imposed the same sentence using a correct scoresheet. Id.
We conclude that the record does not conclusively demonstrate that the trial court would have imposed the same sentence if the scoresheet had been calculated properly. Without the fifteen points for the firearm the appellant’s total sentencing points are 42.4, rather than the 47 on his erroneous scoresheet. When total sentencing points are less than 44 points, the lowest permissible sentence is any non-state prison sanction. The trial court sentenced the appellant under the mistaken belief that the lowest permissible sentence was 24.7 months’ imprisonment. We cannot say that the same sentence would have been imposed if the scoresheet had been correct. See Williams v. State, 720 So. 2d 590 (Fla. 2d DCA 1998) (holding that error on scoresheet is not harmless when presumptive sentence under corrected score-sheet would be any non-state prison sanction).
Accordingly, we affirm appellant’s convictions but reverse and remand for the trial court to resentence the appellant pursuant to a correctly calculated scoresheet.
ALLEN, WOLF, and POLSTON, JJ., concur. . If the inclusion of the 15 points had been proper, the total sentencing points would actually have been 57, not 47 as indicated by the trial court.
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Cherington v. State, 24 So. 3d 658 (Fla. 2d DCA 2009)…ence under a corrected scoresheet will not involve a state prison sanction, ... it cannot be said that the same sentence would have been imposed absent the error.... ” Williams v. State, 720 So. 2d 590, 591 (Fla. 2d DCA 1998); see also Ray v. State, 987 So. 2d 155, 156 (Fla. 1st DCA 2008) (holding that when the trial court sentenced the defendant to prison under the belief that the lowest permissible sentence was a prison term but the lowest permissible sentence under a corrected scoresheet would be a nonpris…
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Alton Napper v. State, 284 So. 3d 1080 (Fla. 4th DCA 2021)…test, scoresheet error is considered harmless if the record conclusively shows that the trial court would have imposed the same sentence using a correct scoresheet.” Harmon v. State, 284 So. 3d 1080, 1081 (Fla. 4th DCA 2019) (quoting Ray v. State, 987 So. 2d 155, 156 (Fla. 1st DCA 2008)). Our review of the record convinces us that the trial court would have imposed the same sentence if it had been presented with a correct scoresheet. Thus, we affirm the sentence but remand for the sole purpose of directing…
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Ellison v. State, 268 So. 3d 1007 (Fla. 1st DCA 2019)…ct the sentence. This scoresheet error was not harmless. The record does not show that the trial court “would-have-imposed” the same sentence using a correct scoresheet. See Sanders v. State, 35 So. 3d 864, 870-71 (Fla. 2010); Ray v. State, 987 So. 2d 155, 156 (Fla. 1st DCA 2008). Petitioner was sentenced to 153 months in prison, which was the lowest permissible sentence under the incorrect scoresheet. Although this sentence falls within the permissible range under a corrected scoresheet, the t…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brooks v. State, 969 So. 2d 238 (Fla. 2007)
- State v. Anderson, 905 So. 2d 111 (Fla. 2005)
- White v. State, 714 So. 2d 440 (Fla. 1998)
- Williams v. State, 720 So. 2d 590 (Fla. 2d DCA 1998)