Jackson v. State, 2D99-3923.

• Decision Date: 17 August 2001
• Docket Number: No. 2D99-3923.,2D99-3923.
• Parties: Robbie JACKSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

793 So.2d 117

Robbie JACKSON, Appellant, v. STATE of Florida, Appellee.

No. 2D99-3923.

District Court of Appeal of Florida, Second District.

August 17, 2001.

James Marion Moorman, Public Defender, and Frank D.L. Winstead, Special Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.

FULMER, Acting Chief Judge.

Jackson appeals his judgments and sentences for attempted lewd act and lewd fondling. Jackson argues that the trial court erred in denying his motions for judgment of acquittal, in directing defense counsel to call a witness to testify, and in sentencing him. After considering all three issues, we find no reversible error as to the first two and therefore affirm the judgments without discussion. We reverse the sentences, however, because the trial court's order entered on Jackson's motion to correct sentencing errors filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) was untimely.

Before the initial brief was filed in this case, Jackson filed a rule 3.800(b)(2) motion to correct sentencing errors. After the sixty-day time period provided in the rule had expired, the trial court entered an order granting in part Jackson's motion and resentencing him. Although the trial court's untimely order properly granted relief on some of the sentencing errors raised in the motion, that order is a nullity because it was untimely entered. See McGuire v. State, 779 So.2d 571, 572 (Fla. 2d DCA 2001)

(finding that rule 3.800(b)(2) "was written to `deem' the motion denied if the trial court does not enter an order resolving the motion within sixty days"). The issues raised in Jackson's motion to correct sentencing errors, however, are preserved for review. See id. ("This automatic denial of the motion allows the defendant to preserve the alleged sentencing error for appellate review and return to the appellate court in less than ninety days when a trial judge does not take action on the motion.").

Jackson raised four sentencing errors in his rule 3.800(b)(2) motion. First, he argued that the trial court erred in assessing eighteen victim injury points for the attempted lewd act conviction in count one. He asserted that the jury acquitted him of the charged offense of committing a lewd assault or act and found him guilty of attempted lewd assault. The trial court denied relief on this claim. On appeal, the State acknowledges that victim injury points should not have been assessed for count one but contends that the trial court neglected to assess any points for victim injury for either count. As Jackson points out, the trial court must have assessed thirty-six victim injury points (eighteen for each count), because the subtotal in the guidelines scoresheet contained in the record reflects a subtotal of 94.8, yet when the points in the individual categories are added together, without the thirty-six victim injury points, the subtotal should be 58.8. Therefore, the 94.8 figure must be a result of adding thirty-six victim injury points. If that total includes eighteen victim injury points for count one, it is error. See Grant v. State, 783 So.2d 1120, 1121-22 (Fla. 1st DCA 2001)

(explaining that because the jury convicted the defendant...