Roberts v. State, 92-373
| Decision Date | 29 December 1992 |
| Docket Number | No. 92-373,92-373 |
| Citation | 611 So.2d 58 |
| Parties | 18 Fla. L. Week. D125 Anthony ROBERTS, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Louis Campbell, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Barbara Arlene Fink, Asst. Atty. Gen., for appellee.
Before SCHWARTZ, C.J., and NESBITT and GODERICH, JJ.
Anthony Roberts appeals the sentence imposed following a violation of probation. We affirm.
Originally, after a jury trial, the defendant was convicted of selling cocaine, and sentenced to four years in prison followed by six years probation under a scoresheet which mistakenly omitted a number of prior convictions. After appeal, this court affirmed the judgment and sentence. Roberts v. State, 565 So.2d 1359 (Fla. 3d DCA 1990).
Thereafter, the defendant violated his probation and, after a hearing, the court sentenced him to nine years in prison. Because the subsequent scoresheet contained the correct number of prior convictions, the sentence imposed upon the defendant was bumped up three cells. The defendant argues that both the Florida Rules of Criminal Procedure as well as the Florida Supreme Court allow for a maximum one-cell increase in a defendant's sentence upon a violation of probation. Fla.R.Crim.P 3.701(d)(14); see also State v. Pentaude, 500 So.2d 526 (Fla.1987). Thus, according to the defendant, the court's failure to use the original scoresheet resulted in a sentence which exceeded the maximum allowed one-cell upward increase.
The defendant cites to Graham v. State, 559 So.2d 343 (Fla. 4th DCA 1990) for the proposition that a trial court is without power to consider a new scoresheet, over objection, containing prior convictions completely omitted from the original. The contention then is that the defendant be sentenced under a scoresheet that is simply not based upon the truth. Consequently, we do not agree with Graham because to follow it literally, the defendant receives the benefit of being sentenced under a scoresheet which mistakenly omits prior convictions. Neither the rules nor the substantive law justifies a defendant receiving the largesse of a judicial error. Since only one guidelines scoresheet may be used for each defendant covering all offenses pending before the court at sentencing, Fla.R.Crim.P. 3.701(d)(1); accord Lambert v. State, 545 So.2d 838, 841 (Fla.1989), following the defendant's argument permits him to escape the punishment meted out by the law.
Furthermore, since the...
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...nor the substantive law justifies a defendant receiving the largesse of a judicial error." Id. at 82 (quoting from Roberts v. State, 611 So.2d 58, 59 (Fla. 3d DCA 1992)). Prior to Roberts, the majority of our district courts of appeal had held that prior convictions mistakenly omitted from ......
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