DENNIS COX, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court erred in failing to recalculate the defendant's sentence after a conviction was vacated, requiring reversal and remand.
Dennis Cox was convicted of robbery with a firearm and attempted second-degree murder, receiving concurrent sentences. The State later nolle prossed t…
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Dennis Cox appeals the denial of his “Motion for Recalculation of Scoresheet and for Resentencing Based on Reduction of the Sentencing Range as a Result of the Dismissal of Attempted Second Degree Murder with a Firearm.” He makes two arguments on appeal. First, the trial court erred in failing to recalculate his sentence after the State nolle prossed his conviction of attempted second-degree murder. Second, the trial court erred in not considering a downward departure. We agree with his first argument and reverse.
Cox was convicted of robbery with a firearm and attempted second-degree murder. He was sentenced to forty years for each count, to run concurrently. The State later nolle prossed the attempted *582second-degree murder charge and the trial court vacated that conviction and sentence. However, the trial court did not recalculate the sentence or issue a new score-sheet.
The State argues that if there was error, it was harmless. because the trial court “could have imposed” the same sentence. See Brooks v. State, 969 So.2d 238, 239 (Fla.2007). However, this standard is used when there is a sentencing scoresheet error. Id. The sentencing scoresheet in the record was not erroneous at the time it was completed. The error here was that the trial court never made a new sentencing scoresheet to recalculate the sentence for the robbery, after the attempted, second-degree murder charge was vacated. Therefore, we reverse and remand for recalculation of the sentence.
Reversed and remanded.
STEVENSON, GERBER and LEVINE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Joseph v. State (Fla. 5th DCA 2020)…standard. Pierce v. State, 281 So. 3d 569, 571 (Fla. 5th DCA 2019) (citations omitted). We explained that the could-have-beenimposed standard “is inapplicable when a defendant seeks resentencing after a vacated conviction.” Id. (citing Cox v. State, 192 So. 3d 581, 582 (Fla. 4th DCA 2016)). However, in Pierce, the defendant’s vacated conviction occurred within the same case, such that the vacated conviction became part of the postconviction record. Id. The same situation occurred in Termitus, 279 So. 3d at 32…
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Pierce v. State (Fla. 5th DCA 2019)
Authorities Cited
- Brooks v. State, 969 So. 2d 238 (Fla. 2007)