Carrigan v. State, No. 5D03-3271.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: PLEUS, J.
• Citation: 873 So.2d 605
• Parties: Sean CARRIGAN, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 5D03-3271.
• Decision Date: 28 May 2004

873 So.2d 605

Sean CARRIGAN, Appellant,
v.
STATE of Florida, Appellee

No. 5D03-3271.

District Court of Appeal of Florida, Fifth District.

May 28, 2004.

873 So.2d 606

Andrew D. Stine, West Palm Beach, for Appellant

Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellees.

PLEUS, J.

Sean Carrigan appeals from his sentence following the revocation of his probation, asserting that the trial court erred in scoring the 1.5 drug multiplier on his violation of probation sentencing scoresheet when it had not been scored on his original sentencing scoresheet. We affirm.

In 1996, the defendant entered into a negotiated nolo contendere plea whereby he pled to one count of trafficking in 28 grams or more of cocaine with a firearm and one count of leaving the scene of an accident with injuries. The defendant was adjudicated guilty and sentenced, in accordance with the plea agreement, to 72 months in prison followed by five years probation. This included a three year minimum mandatory sentence for the firearm. The sentencing guidelines scoresheet, which was prepared even though the sentence imposed was not based on the guidelines,¹ did not include a 1.5 drug multiplier applicable to drug trafficking offenses.

In 2003, the State filed an affidavit of violation of probation, alleging the defendant violated his probation on two occasions by possessing methamphetamine, possessing drug paraphernalia and by selling methamphetamine.

The defendant admitted to violating his probation. An issue at sentencing involved whether the court could add the 1.5 drug multiplier to the defendant's scoresheet when the multiplier had not been scored on the original sentencing scoresheet. The defendant argued that to score the 1.5 multiplier only upon sentencing following violation of probation would violate his double jeopardy rights.

The State countered that there was no discussion of applicability of the 1.5 drug multiplier at the original sentencing hearing and there was no reason the probation revocation sentencing court could not now score the drug multiplier.

As a result of adopting the State's view of the law, the defendant's score of 87.6 points was increased to 131.4 points. The defendant was subjected to 43.8 additional months incarceration. He was given a guidelines sentence of 110 months incarceration.

In Roberts v. State, 644 So.2d 81 (Fla. 1994), the supreme court recognized that in sentencing a defendant after a revocation of probation, a court has authority to revise a guidelines scoresheet to include prior convictions that were mistakenly omitted from the original scoresheet through no fault of the defendant. In that case, the original scoresheet omitted a number of the defendant's prior convictions. After violating his probation, a revised scoresheet was prepared which included the prior convictions. The supreme court approved, explaining:

When Roberts was originally sentenced, he received the benefit of a mistake in his guidelines scoresheet. Now that he

873 So.2d 607

has committed a new crime and violated his probation, we see no reason to perpetuate the error. Justice is not served by awarding a defendant something to which he is not entitled.

644 So.2d at 82.

The Roberts court further agreed with the district court opinion which added that: "since the defendant's violation of probation triggered the resentencing, the defendant is not being sentenced for precisely the same conduct and double jeopardy concerns...