Sanders v. State, 2D07-1241.
| Decision Date | 19 August 2009 |
| Docket Number | No. 2D07-1241.,2D07-1241. |
| Citation | 16 So.3d 232 |
| Parties | Marcus SANDERS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
Marcus Sanders challenges the amended judgments and sentences entered in case numbers 00-CF-614, 00-CF-1964, and 00-CF-2894 after his probation was revoked on December 8, 2006. Because Sanders already had fully completed his original probationary sentences on his third-degree felony offenses in those cases, we reverse the orders revoking his probation as to those counts. We affirm the revocation of Sanders' probation and the sentences he received for his second-degree felony offenses in circuit court case number 00-CF-2894.
On January 23, 2003, Sanders pleaded no contest to five counts in three separate cases and was sentenced to concurrent three-year prison terms on all counts to be followed by concurrent terms of probation, the length of which varied by the degree of each offense. The criminal mischief and attempted burglary counts in case numbers 00-CF-614 and 00-CF-1964, as well as the aggravated assault count in case number 00-CF-2894, were all third-degree felonies for which Sanders received two-year terms of probation. Sanders received three-year terms of probation on the second-degree counts of robbery and aggravated battery in case number 00-CF-2894.
Although he repeatedly violated the conditions of supervision, the trial court reinstated his probation after each violation. After Sanders completed the two-year probationary terms he was serving on his third-degree felonies, but before he had completed his remaining probation on the second-degree felonies, the State again alleged that Sanders violated the conditions of his supervision. On December 8, 2006, the trial court revoked his probation in all cases and sentenced him to concurrent 108-month (nine-year) terms on all five counts, which was a slight downward departure from the lowest permissible sentence of 111.6 months on his newly prepared criminal punishment code scoresheet.
The State has conceded that Sanders already had completed the originally imposed two-year term of probation for all of his third-degree felonies prior to the filing of the most recent affidavit of violation of probation. Pursuant to section 948.06, Florida Statutes (1999), the trial court only had jurisdiction to revoke his probation and sentence him on the second-degree offenses in case number 00-CF-2894—those offenses for which he was still serving probation at the time of the alleged violation. "[U]pon the expiration of the probationary ... period, `a court is divested of all jurisdiction over the person of the probationer unless in the meantime the processes of the court have been set in motion for revocation or modification of the probation.'" Stapler v. State, 939 So.2d 1092, 1093 (Fla. 5th DCA 2006) (quoting State v. Hall, 641 So.2d 403, 404 (Fla.1994)). Accordingly, we affirm the revocation of Sanders' probation and the sentences imposed for the counts of second-degree robbery and aggravated battery in case 00-CF-2894. However, we reverse and remand with instructions for the trial court to strike the orders of revocation of probation and vacate Sanders' sentences for the counts in cases 00-CF-614 and 00-CF-1964 and the third-degree aggravated assault count in case number 00-CF-2894.
Sanders also argues that his sentences for the second-degree felonies should be reversed because of an error in preparing the scoresheet used at the resentencing. He maintains that since he could not be sentenced on the third-degree felonies, it was error to score these crimes as additional offenses rather than prior record and that such error resulted in a higher sentencing range. He therefore argues that he should be resentenced using a corrected scoresheet.1
At the time Sanders was originally sentenced in 2000, his scoresheet correctly listed the third-degree felonies as additional offenses. See § 921.0021(1), Fla. Stat. (1999) (). Technically, these same third-degree felony offenses would fail to meet the definition of additional offenses on a recalculated scoresheet prepared for sentencing after the 2006 revocation of probation. As we already have concluded, the trial court was without jurisdiction to revoke Sanders' probation on those offenses. Because only the second-degree felonies were before the trial court for sentencing after revocation of Sanders' probation, the third-degree felonies could not be listed as additional offenses on a recalculated scoresheet.
The only other way these offenses might be scored on a recalculated scoresheet would be as prior record. Section 921.0021(5) defines prior record as "a conviction for a crime committed by the offender ... prior to the time of the primary offense." See also Fla. R. Crim. P. 3.703(d)(15); 3.704(d)(14). Sanders committed the two third-degree felonies in cases 00-CF-614 and 00-CF-1964 at least several months before he committed the offenses in case 00-CF-2894. As such, a strict reading of the statutory definition does suggest that at least two of the third-degree felonies at issue should be scored as prior record on a recalculated scoresheet. See also Fla. R. Crim. P. 3.704(d)(14)(D) ().
However, Sanders' argument that his third-degree offenses should be listed as prior record on a recalculated scoresheet presumes that...
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