Gordon v. State, 90-2190

• Citation: 16 Fla. L. Weekly 143,572 So.2d 33
• Decision Date: 04 January 1991
• Docket Number: No. 90-2190,90-2190
• Parties: 16 Fla. L. Weekly 143 Kenneth GORDON, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

Page 33

572 So.2d 33

16 Fla. L. Weekly 143

Kenneth GORDON, Appellant, v. STATE of Florida, Appellee.

No. 90-2190.

District Court of Appeal of Florida,

Fourth District.

Jan. 4, 1991.

Appeal of order denying 3.800(a) motion from the Circuit Court for Broward County; M. Daniel Futch, Jr., Judge.

Kenneth Lee Gordon, Belle Glade, pro se.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Miles Ferris, Asst. Atty. Gen., West Palm Beach, for appellee.

PER CURIAM.

Kenneth Gordon appeals the trial court's order denying his motion to correct illegal sentence.

We reverse. Appellant was not under "legal restraint" at the time he committed the crimes which caused him to be placed on probation. Therefore, no points for "legal restraint" should have been scored when appellant was sentenced for the later violation of probation. Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984); See also Higgs v. State, 470 So.2d 75 (Fla. 3d DCA 1985).

Although appellant's sentence may ultimately be the same because of Rule 3.701 d.14, Florida Rules of Criminal Procedure, or the scoring omission of another prior felony conviction, he is entitled to be resentenced with the trial judge using a corrected scoresheet. Dawson v. State, 532 So.2d 89 (Fla. 4th DCA 1988).

REVERSED AND REMANDED FOR RESENTENCING.

DOWNEY, STONE and GARRETT, JJ., concur.