Roberson v. State
| Decision Date | 26 January 1990 |
| Docket Number | No. 88-2646,88-2646 |
| Parties | 15 Fla. L. Weekly D274 James Edward ROBERSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
We grant the State's motion for clarification wherein the question raised is whether, as a result of our original opinion dated December 8, 1989, the trial court may apply the permitted guidelines ranges to offenses committed after the effective date of the amendment creating those ranges. The State's point is well taken. In our original analysis, we failed to account for the resentencing of case no. 88-3653, in which appellant was convicted of two offenses committed on August 14, 1988. The effective date of Chapter 88-131, § 1, Laws of Florida, which amended Florida Rule of Criminal Procedure 3.988 and created the permitted ranges, was July 1, 1988. Accordingly, we withdraw our previous opinion and substitute the following opinion in its place.
James Edward Roberson appeals from three unrelated judgments and sentences entered on September 30, 1988. The assistant public defender filed an initial brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that he could not argue, in good faith, that the trial court had committed reversible error. Pursuant to State v. Causey, 503 So.2d 321 (Fla.1987), we ordered supplemental briefs because it appeared that the sentencing guidelines scoresheet was incorrectly scored. The supplemental briefs were timely filed, addressing the following issue: "Whether the primary and additional offense scores on the guidelines scoresheet for circuit court case 87-4261 and case 88-3653 were correctly computed, in accordance with Florida Rule of Criminal Procedure 3.701(d)?" We find that the scoresheet was incorrectly computed and reverse and remand for resentencing.
In circuit court case no. 82-2663, appellant was convicted of misdemeanor petit theft and third degree felony grand theft. The court withheld imposition of sentence and placed him on probation for a period of 5 years. In 1986, he violated probation conditions and received 3 additional years of probation. In 1987, he violated probation conditions again. In September, 1988, the court revoked the probation and sentenced appellant to time served for the petit theft conviction and to 4 1/2 years imprisonment for the grand theft conviction.
In circuit court case no. 87-4261, appellant was convicted of second degree burglary and third degree grand theft. On September 30, 1988, the court sentenced him to 4 1/2 years imprisonment for the grand theft offense to run concurrently with the prison sentence imposed in case no. 82-2663. The court withheld imposition of sentence for the burglary, placing appellant on probation for a period of 5 years to run consecutively to the 1987 grand theft sentence.
In case no. 88-3653, appellant was convicted of another second degree burglary and third degree grand theft. The court withheld imposition of sentence on both counts and placed appellant on probation for a period of 5 years to run concurrently with each other and the probation imposed in case no. 87-4621.
A category 5 guidelines scoresheet was prepared, listing case no. 87-4621 as the primary case and case no. 88-3653 as an additional case. 1 A second degree felony and a third degree felony were included as primary offenses at conviction. Another second degree felony and a third degree felony were listed as additional offenses at conviction. Two third degree felonies and three misdemeanors were listed as prior record. 2 Points were also scored for a prior category 5 (burglary) offense and for legal restraint at the time of the offenses. The scoresheet reflected a composite score of 91 points, resulting in a recommended sentencing range of "4 years (3 1/2-4 1/2)."
In his supplemental brief, appellant contends that the primary and additional offense categories were incorrectly scored. He recomputes his scoresheet as follows:
I. Primary offense
2d degree burglary 30
II. Additional offenses
2d degree burglary 6
two 3d deg. grand thefts 5
III. Prior Record
two 3d deg. felonies 13
three misdemeanors 3
Prior category 5 convictions 5
IV. Legal status at time of offenses 10
----
72
Appellant concludes that the new score lowers his sentence one cell to the "2 1/2-3 1/2 year" range.
The state concedes error, but recomputes the scoresheet differently:
I. Primary offenses--
two 2d degree burglaries 36
II. Additional offenses
three 3d deg. grand thefts 6
one misdemeanor petit theft 1
III. Prior Record
one 3d deg. felonies 6
two misdemeanors 2
Prior category 5 convictions 5
IV. Legal status at time of offenses 10
----
66
The state concludes that the new score places appellant in the "Community Control or 12-30 months incarceration" sentencing range. However, the state contends that, under Florida Rule of Criminal Procedure 3.701(d)(14), the trial court could have departed one cell from the recommended sentence following revocation of probation without having to articulate any reason for the departure. Such an upward departure would have placed appellant in the "3 yrs. incarceration (2 1/2-3 1/2)" range. The state contends further that the analysis does not stop at rule 3.701(d)(14), because appellant committed his last crime on August 14, 1988, six weeks after the effective date of amended rule 3.988(e), which allowed the trial court to sentence appellant within a permitted guidelines range of "community control or 1-4 1/2 years incarceration." 3 The state concludes that the trial court properly imposed a sentence at the top of the permitted guidelines range and, since the scoresheet errors did not affect the recommended range, the errors were harmless.
A single guideline scoresheet covering all offenses pending before the court for sentencing must be used. Fla.R.Crim.P. 3.701(d)(1). When a defendant is being sentenced for multiple offenses, the primary offense at conviction is determined by preparing separate scoresheets, scoring each offense at conviction as the primary offense and the other offenses as additional offenses. The scoresheet which recommends the most severe sentencing range must be used by the sentencing judge. Fla.R.Crim.P. 3.701(d)(3). The Committee Notes to rule 3.701(d)(3) provide that
It is clear that the original scoresheet incorrectly included both a second degree and third degree felony as primary offenses at conviction. A corrected scoresheet should include the two second degree burglaries as the primary offenses at conviction. As discussed below, the recomputed composite score using two counts of second degree burglary as primary offenses is 72 points, resulting in a recommended sentence in the "2 1/2-3 1/2 year" range. Fla.R.Crim.P. 3.988(e). The composite score using two counts of second degree grand theft as primary offenses is 51 points, resulting in a recommended sentence in the "Community Control or 12-30 mos. incarceration" range. Fla.R.Crim.P. 3.988(f). The former is the appropriate scoresheet to utilize.
As to the additional offense category, only the 1987 and 1988 third degree grand thefts should be scored. Fla.R.Crim.P. 3.701(d)(4). The state's inclusion of the 1982 offenses as additional offenses at conviction is improper because the 1982 offenses are non-guidelines sentences which were properly scored in the original scoresheet under the prior record category. Fla.R.Crim.P. 3.701(d)(5)(a); Thorp v. State, 555 So.2d 362 (Fla.1990).
Additionally, the original scoresheet correctly includes one count of a third degree felony (1981 burglary), and three misdemeanors (1981 joyriding and petit theft and the 1982 petit theft) as prior record. The balance of the original scoresheet--a prior category 5 conviction (1981 burglary) and legal constraint--is correct. The correct composite score is 72 points, resulting in a "2 1/2-3 1/2 year" sentencing range. See Fla.R.Crim.P. 3.988(e).
We disagree with the state's application of rule 3.701(d)(14). Appellant's probation was revoked for the 1982 non-guidelines offenses. Rule 3.701(d)(14) should only apply to a revocation of probation pertaining to a guideline offense.
We also disagree with the state's application of the permitted ranges to circuit court case no. 87-4261. While the state correctly asserts that appellant's sentence falls at the top of the permitted range of the third cell, application of amended rule 3.988 to offenses occurring before the effective date of the amendment would violate constitutional prohibitions against ex post facto laws. 4 In order for a change in the law to be applied ex post facto, it must be retrospective, i.e., it must apply to events occurring before its enactment; and, it must not disadvantage the offender affected by it. Miller v. Florida, 482 U.S. 423, 431, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351, 360 (1987). Additionally, the change must not affect "substantial personal rights" and must be merely procedural in nature. Id. Application of the permitted ranges to case no. 87-4261, would clearly be...
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