Harden v. State

• Decision Date: 10 November 2021
• Docket Number: 2D20-2936
• Parties: Sylvester Dupree HARDEN, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

331 So.3d 807

Sylvester Dupree HARDEN, Jr., Appellant,

v.STATE of Florida, Appellee.

No. 2D20-2936

District Court of Appeal of Florida, Second District.

November 10, 2021

Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and C. Todd Chapman, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

Sylvester Dupree Harden, Jr., appeals his judgment and sentence for one count of unlawful sexual activity with a minor. We affirm Mr. Harden's judgment and sentence in all respects, but we remand to the trial court for entry of a corrected scoresheet.

Mr. Harden was sentenced to sixty months in prison followed by 120 months' probation pursuant to a negotiated plea agreement in exchange for the second and third counts of unlawful sexual activity with a minor with which he was charged being nolle prossed. Mr. Harden's sentencing guideline scoresheet reflected eighty victim injury points for penetration. Because Mr. Harden pled to a charge that alleged union and/or penetration, victim injury points for penetration could not be assessed absent a specific finding of penetration or Mr. Harden stipulating to the fact of penetration. See Alexis v. State , 258 So. 3d 471, 472–73 (Fla. 4th DCA 2018) ("When a defendant pleads to an offense that does not require proof of sexual penetration as charged, victim injury points for penetration cannot be assessed unless the defendant stipulates that penetration occurred or agrees to inclusion of the points as part of a plea bargain."); Mann v. State , 974 So. 2d 552, 554 (Fla. 5th DCA 2008) ("[W]hen the information charges penetration or union, the assessment of victim penetration points is error absent a specific finding that penetration occurred."). Neither occurred here. As a result, Mr. Harden's scoresheet was incorrectly calculated. See Alexis , 258 So. 3d at 473 ; Blair v. State , 201 So. 3d 800, 803 (Fla. 4th DCA 2016) ; Hatten v. State , 143 So. 3d 1103, 1105 & n.2 (Fla. 5th DCA 2014) ; Mann , 974 So. 2d at 554.

Mr. Harden is not entitled to resentencing, however, because the record conclusively shows that the trial court would have imposed the same sentence regardless of the scoresheet error. See Sanders v. State , 35 So. 3d 864, 870–71 (Fla. 2010) ("When a scoresheet error is challenged on direct appeal, ... the error ‘is harmless if the record conclusively shows that the trial court would have imposed the same sentence using a correct scoresheet.’ " (quoting Brooks v. State , 969 So. 2d 238, 241 (Fla. 2007) )); Henion v. State , ...