Lakey v. State

• Decision Date: 28 August 2015
• Docket Number: No. 5D13–3277.,5D13–3277.
• Citation: 172 So.3d 989 (Mem)
• Parties: Chad Edward LAKEY, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

172 So.3d 989 (Mem)

Chad Edward LAKEY, Appellant

v.STATE of Florida, Appellee.

No. 5D13–3277.

District Court of Appeal of Florida, Fifth District.

Aug. 28, 2015.

William R. Ponall, of Snure & Ponall, P.A., Winter Park, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.

Opinion

PER CURIAM.

Appellant, Chad Edward Lakey, seeks review of three trial court orders denying his motions requesting: 1) to be resentenced upon remand from this court; 2) to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) ; and 3) to disqualify the trial judge. We affirm the denial of the motion to disqualify. However, because Lakey is entitled to be sentenced under a corrected scoresheet, we reverse and remand for further proceedings.

Lakey was originally sentenced to 150 months in the Department of Corrections on three counts relating to sexual battery upon a child. The sentencing scoresheet called for a lowest permissible sentence of 149.25 months' imprisonment. Upon direct appeal, this court affirmed Counts I and III but reversed on Count II due to an error in a jury instruction. The State subsequently entered a nolle prosequi on Count II. Because there were no pending charges at that time, the trial court did not err in denying Lakey's motion for resentencing. See Pennington v. State, 120 So.3d 647, 648 (Fla. 5th DCA 2013) (“[T]rial courts are not authorized, on remand after direct appeal, to modify sentences on convictions not disturbed by the appellate court.” (citing Fasenmyer v. State, 457 So.2d 1361, 1365–66 (Fla.1984) )).

Lakey then filed a motion to correct a sentencing error under rule 3.800(b)(2). He argued that the record did not establish that he would have received the same sentence without the victim injury points from Count II. “When a sentencing error is challenged by ... a 3.800(b) claim ... a scoresheet error is ‘harmless if the record conclusively shows that the trial court would have imposed the same sentence using a correct scoresheet.’ ” Richards v. State, 76 So.3d 29, 30 (Fla. 5th DCA 2011) (quoting Brooks v. State, 969 So.2d 238, 241 (Fla.2007) ). The closeness of the 150 months' imprisonment to the original guideline sentence of 149.25 months indicates an intention to sentence consistently with the scoresheet. See Daniels v. State, 114 So.3d 1108, 1110 (Fla. 2d DCA 2013) (“[T]he fact that the forty-two-month figure appears merely to be rounded up from the scoresheet minimum sentence of 41.85 months, evidence[s] an intention to impose a sentence consistent with the scoresheet minimum.”). The record does not conclusively show that Lakey would have received the same sentence with an amended scoresheet.

Furthermore,...