Bradley v. State, s. 84-2311
| Decision Date | 13 September 1985 |
| Docket Number | 84-2346 and 84-2348,Nos. 84-2311,s. 84-2311 |
| Parties | 10 Fla. L. Weekly 2137, 10 Fla. L. Weekly 2612 George BRADLEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
The motion for rehearing is granted. The opinion filed in this case on June 21, 1985 [10 FLW 1544], is withdrawn and the following opinion is substituted in lieu thereof.
Appellant raises as error the inaccuracy of the scoresheet utilized to sentence him after revocation of his probation in three consolidated cases. He alleges that his previous offenses were erroneously scored as "prior record" rather than as "additional offenses at conviction." We agree, but affirm because proper scoring of his offenses would result in a greater point total but the same recommended sentence.
On separate occasions, appellant committed three burglaries (two punishable as felonies of the second degree and one punishable as a felony of the third degree), and one grand theft of the second degree (punishable as a felony of the third degree). For each offense, adjudication was withheld and appellant was placed on probation.
After accepting appellant's guilty plea to violations of probation, the trial judge revoked appellant's probation and adjudicated him guilty on all counts.
The scoresheet in the record on appeal reflects a point total of 53 points, computed as follows:
Category 5: Burglary
I Primary offenses at conviction
(1 third-degree felony) 20 points
III A. Prior record (2
second-degree felonies) 13 points
B. Prior convictions for
Category 5 offenses (2 x 5
points) 10 points
IV Legal status at time of offense
(constraint) 10 points
---------
TOTAL 53 points
This point total corresponds to a recommended range of community control or twelve to thirty months' incarceration. However, an increase of one cell upon revocation of probation pursuant to Florida Rule of Criminal Procedure 3.701(d)(14), results in a recommended sentence range of two and one-half to three and one-half years. The trial judge sentenced appellant to concurrent terms of three and one-half years' imprisonment. No objection to the sentence was raised before the trial judge.
The state contends that this issue has not been preserved for appellate review because appellant's counsel failed to contemporaneously object to the sentence imposed. We disagree. Sentencing errors may be reviewed on appeal, even in the absence of a contemporaneous objection, if the errors are apparent and determinable from the record on appeal. See State v. Rhoden, 448 So.2d 1013 (Fla.1984); Hart v. State, 464 So.2d 592 (Fla. 2d DCA 1985); Ramsey v. State, 462 So.2d 875 (Fla. 2d DCA 1985); Myrick v. State, 461 So.2d 1359 (Fla. 2d DCA 1984). In the case before us, the scoring inaccuracies are readily determinable from the record. See Parker v. State, 478 So.2d 823 (Fla. 2d DCA 1985) [10 FLW 1859]; Whitfield v. State, 471 So.2d 633 (Fla. 1st DCA 1985); Tucker v. State, 464 So.2d 211 (Fla. 3d DCA 1985). Compare Dailey v. State, 471 So.2d 1349 (Fla. 1st DCA 1985) ().
Turning to the merits of this case, Florida Rule of Criminal Procedure 3.701(d)(3), in effect at the time of appellant's sentencing, provides:
"Primary offense" is defined as the most serious offense at conviction. In the case of multiple offenses, the primary offense is determined in the following manner:
a) A separate guidelines scoresheet shall be prepared scoring each offense at conviction as the "primary offense at conviction" with the other offenses at conviction scored as "additional offenses at conviction."
b) The guidelines scoresheet which recommends the most...
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Fletcher v. State, 90-822
...should be scored as an "additional offense at conviction." Hallback v. State, 479 So.2d 865 (Fla. 5th DCA 1985); Bradley v. State, 480 So.2d 647 (Fla. 2d DCA 1985), cause dism., 486 So.2d 595 (Fla.1986). For some reason not yet understood by many judges, the sentencing guidelines committee ......
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...and one sixty-day term, to run concurrently. Rojas relies upon State v. Salsberry, 487 So.2d 402 (Fla. 5th DCA 1986); Bradley v. State, 480 So.2d 647 (Fla. 2d DCA 1985); cause dismissed, 486 So.2d 595 (Fla.1986); and Hallback v. State, 479 So.2d 865 (Fla. 5th DCA 1985), to support his conte......
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Ludeman v. State, 91-384
...should be scored as an "additional offense at conviction." Hallback v. State, 479 So.2d 865 (Fla. 5th DCA 1985); Bradley v. State, 480 So.2d 647 (Fla. 2d DCA 1985), cause dism., 486 So.2d 595 (Fla.1986). For some reason not yet understood by many judges, the sentencing guidelines committee ......
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