LARRY EUGENE SHORTER, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Larry Eugene Shorter, Jr. appeals his sentence for child abuse imposed after probation revocation. The trial court improperly included forty victim injury points on the Criminal Punishment Code scoresheet for a crime (leaving the scene of an accident) that was not before the court for sentencing, and the appellate court reverses and remands for resentencing with a corrected scoresheet.
The inclusion of forty victim injury points for the leaving the scene of an accident charge was improper because that offense was not pending before the court for sentencing. Under the "would-have-been imposed" test, because the reviewing court cannot conclusively determine from the record what sentence the trial court would have imposed without the erroneous points, remand for resentencing on a corrected scoresheet is required.
[1] Victim injury points may not be assessed on a scoresheet for a crime that is not before the court for sentencing.
[2] A motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) is a proper method to address inaccurate scoresheets.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“'Victim injury' means the physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense.”
Establishes the statutory definition limiting victim injury points to offenses pending before the court for sentencing, showing the points were improperly included for the leaving the scene charge.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceShorter's probation was revoked based on new law offenses and he was sentenced to 53.7 months in prison. The Criminal Punishment Code scoresheet used …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Criminal Punishment Code Scoresheet cases and more on FLexlaw
Larry Eugene Shorter, Jr., appeals his sentence for child abuse entered after the trial court revoked his probation. Because the trial court improperly included victim injury points on the scoresheet for a crime that was not before the court for sentencing, which the State concedes, we reverse and remand for resentencing with a corrected scoresheet.
The trial court revoked Shorter’s probation based upon new law offenses and sentenced him to 53.7 months in prison. The Criminal Punishment Code scoresheet showed 53.7 months as the lowest permissible prison sentence. The scoresheet included forty points for severe victim injury. Those points were assessed, however, for victim injury resulting from the new law offense of leaving the scene of an accident with injury, which was not before the court for sentencing.
Shorter brought this issue to the trial court’s attention in a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). See Jackson v. State, 983 So.2d 562, 572 (Fla.2008) (recognizing inaccurate scoresheets as “sentencing errors” subject to preserva*1064tion by rule 3.800(b)(2)); State v. Anderson, 905 So.2d 111, 118 (Fla.2005) (stating that a rule 3.800(b) motion is a method to correct scoresheet error); Harper v. State, 5 So.3d 765, 765-66 (Fla. 2d DCA 2009) (stating that scoresheet error was preserved for review by rule 3.800(b)(2) motion). Our record reflects that the trial court did not rule on the motion within sixty days; thus, we deem the motion denied. See Harper, 5 So.3d at 766 n. 1.
Because Shorter was not before the court for sentencing on the leaving the scene of an accident charge, it was improper to consider those victim injury points in sentencing Shorter for child abuse. See § 921.0021(7)(a), Fla. Stat. (2002) (“ ‘Victim injury’ means the physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense.”). Shorter argues that the trial court clearly intended to sentence him to the lowest permissible prison sentence on the scoresheet and that we should reverse and remand for the trial court to resen-tence him to the lowest permissible prison sentence based on a corrected scoresheet that does not include the forty victim injury points. The State contends that resen-tencing is required to determine whether the trial court would1 impose the same sentence of 53.7 months under a corrected scoresheet.
The Florida Supreme Court has determined that the test to be applied on a direct appeal regarding whether score-sheet error requires resentencing is the “would-have-been imposed” test. See Anderson, 905 So.2d at 118. “If the reviewing court cannot determine conclusively from the record that the trial court would have imposed the same sentence despite the erroneous scoresheet, remand for resentencing is required.” 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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Carlton v. State, 86 So. 3d 1194 (Fla. 2d DCA 2012)…pancy. The court found the motion facially sufficient and ordered the State to respond. However, the State failed to respond, and the trial court failed to rule on this motion within sixty days; thus, we deem the motion denied. See Shorter v. State, 14 So. 3d 1063, 1064 (Fla. 2d DCA 2009). When there is a discrepancy between the written sentence and the oral pronouncement, the oral pronouncement prevails. See Rivera v. State, 34 So. 3d 207, 208 (Fla. 2d DCA 2010). Because the trial court’s oral pronouncement…
-
Daniels v. State, 114 So. 3d 1108 (Fla. 2d DCA 2013)…7). The record before us does not conclusively show that the circuit court would have imposed a sentence of forty-two months’ prison if the scoresheet had accurately reflected a prior conviction for second-degree felony murder. See Shorter v. State, 14 So. 3d 1063 (Fla. 2d DCA 2009) (remanding for resen-tencing when the trial court had imposed the minimum sentence reflected on an erroneous scoresheet and the appellate court could not be certain whether the court would have imposed the same sentence on a score…
Authorities Cited
- Jackson v. State, 983 So. 2d 562 (Fla. 2008)
- State v. Anderson, 905 So. 2d 111 (Fla. 2005)
- Taylor v. State, 939 So. 2d 1158 (Fla. 2d DCA 2006)
- Budd v. State, 939 So. 2d 1158 (Fla. 2d DCA 2006)
- Rodny Schenck v. State, 5 So. 3d 765 (Fla. 3d DCA 2009)
- Harper v. State, 5 So. 3d 765 (Fla. 2d DCA 2009)