Sellers v. State, 90-2367

• Decision Date: 03 April 1991
• Docket Number: No. 90-2367,90-2367
• Parties: Louie Anthony SELLERS, Appellant, v. STATE of Florida, Appellee. 578 So.2d 339, 16 Fla. L. Week. 921
• Court: Florida District Court of Appeals

Page 339

578 So.2d 339

Louie Anthony SELLERS, Appellant, v. STATE of Florida, Appellee.

No. 90-2367.

578 So.2d 339, 16 Fla. L. Week. 921

District Court of Appeal of Florida,

First District.

April 3, 1991.

Rehearing Denied May 10, 1991.

Barbara M. Linthicum, Public Defender, and Glen P. Gifford, Asst. Public Defender, Tallahassee, for appellant.

Robert A. Butterworth, Atty. Gen., and Charlie McCoy, Asst. Atty. Gen., Tallahassee, for appellee.

ZEHMER, Judge.

Louie Anthony Sellers appeals the sentences imposed upon adjudication that he had violated certain conditions of his community control. He had been sentenced to two years' community control upon being adjudicated guilty of the two underlying charges, dealing in stolen property (case number 89-3115) and burglary of a structure (case number 89-3116). The sentencing guidelines scoresheet for the primary offense of dealing in stolen property, rule 3.988(f), Florida Rules of Criminal Procedure, was calculated by multiplying the score of 6 for legal constraint by two, the number of offenses involved, and the inclusion of 12 points for legal constraint resulted in a total score of 96 points. The guidelines cell for this point score contained a recommended range of 4 1/2 to 5 1/2 years and a permitted range of 3 1/2 to 7 years. Upon revocation of community control, Sellers was sentenced in case number 89-3115 to a term of 6 years' imprisonment followed by a period of 9 years on probation, and in case number 89-3116 to a term of 3 years in prison followed by a period of 2 years on probation, the sentences to run concurrently. He asserts three errors on this appeal.

Sellers's first point contends that the guidelines scoresheet was incorrectly calculated because rule 3.701 does not specify that the indicated score for legal constraint (6) be multiplied by the number of offenses (2) he committed while under legal constraint. He points out that using only the 6 points authorized on the scoresheet, rather than the 12 points actually used, results in a total score of 90 points, which would place him in a lower cell having a recommended sentencing range of 3 1/2 to 4 1/2 years and a permitted range of 2 1/2 to 5 1/2 years. This error, Sellers argues, requires that his sentence be vacated and the cause remanded for resentencing based upon a correctly calculated scoresheet.

Responding to this point, the state contends that no error occurred because rule 3.701 contemplates multiplying this factor for legal constraint by the number of offenses involved; and that even if this is incorrect, the error is harmless because the 6-year sentence that was imposed falls within the permitted range of the next higher cell and is thus within the guidelines sentence authorized by the one cell bump-up provision in rule 3.701(d)(14). The state relies on the fifth district decisions in Flowers v. State, 567 So.2d 1055 (Fla. 5th DCA 1990), and Walker v. State, 546 So.2d 764 (Fla. 5th DCA 1989), which support their construction of the guidelines rule.

Addressing this threshold issue, we note the absence of a clear analysis justifying the result in the fifth district decisions and are persuaded to follow the rationale of Judge Cowart's dissent in Flowers, 567 So.2d at 1055. We likewise agree with the rationale set forth in the recent decisions of the second district in Scott v. State, 574 So.2d 247 (Fla. 2d DCA 1991), and Lewis v. State, 574 So.2d 245 (Fla. 2d DCA 1991). Accordingly, we hold it was error to multiply the indicated points for legal constraint by the number of offenses involved. We certify direct conflict with Flowers and Walker.

The state argues that this error should be treated as harmless because the 6-year sentence imposed falls within the permitted range of the next higher cell, and thus is valid under rule 3.701(d)(14). We have encountered considerable difficulty in evaluating the state's argument, however, because the state cites no authority for this argument, and appellant's brief does not even respond to it. Thus, we are left to decide this issue based on our own knowledge of the law and verifying legal research that we have diligently performed to avoid handing down a decision in conflict with prior appellate decisions of this and other Florida courts. Our research reveals that in cases where an error has occurred in calculating the guidelines score and the corrected score nevertheless places the defendant in the same guidelines cell, the error is considered harmless. E.g., Guardado v. State, 562 So.2d 696 (Fla. 3d DCA 1990); Huggins v. State, 537 So.2d 207 (Fla. 4th DCA 1989); Cridland v. State, 522 So.2d 538 (Fla. 3d DCA 1988). However, when the deletion of improperly included points in the guidelines score results in a reduction of one or more cells, the sentence should be vacated and the cause remanded for resentencing upon a properly calculated scoresheet. E.g., White v. State, 537 So.2d 196 (Fla. 2d DCA 1989); Thorn v. State, 529 So.2d 363 (Fla. 2d DCA 1988). In Brown v. State, 502 So.2d 1293 (Fla. 1st DCA 1987), the defendant was sentenced to 3 1/2 years imprisonment pursuant to a guidelines scoresheet that improperly included points for legal constraint, resulting in a total score that called for a range of 3 1/2 to 4 1/2 years. We rejected the state's argument that this error was harmless, explaining:

Since a proper calculation of appellant's scoresheet would place him in a guidelines range of two and one-half to three and one-half years, and since the plea agreement contemplated a sentence at the low end of the guidelines range (which the trial judge previously did), we cannot conclude, as urged by the state, that the error is harmless. Accordingly, we reverse and remand for resentencing.

502 So.2d at 1294. This rationale is consistent with the theory of the guidelines, recognized soon after the courts of this state began dealing with sentencing...