Senior v. State, 86-1915
| Decision Date | 26 February 1987 |
| Docket Number | No. 86-1915,86-1915 |
| Citation | 12 Fla. L. Weekly 622,502 So.2d 1360 |
| Parties | 12 Fla. L. Weekly 622 William SENIOR, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Kevin Kitpatrick Carson, Asst. Atty. Gen., Daytona Beach, for appellee.
William Senior appeals his sentence of five years' incarceration imposed after the trial court granted the state's motion to correct sentence.
Appellant was charged with lewd and lascivious assault upon a child in violation of section 800.04(1), Florida Statutes (1985), and subsequently pled guilty to attempted lewd and lascivious assault on a child. At the sentencing hearing a scoresheet was submitted, with which the state expressed satisfaction. The scoresheet reflected a total score of 149 points, corresponding to a recommended guideline sentence of any nonstate prison sanction. Senior was sentenced in conformity with the guidelines to 51 weeks of incarceration.
After Senior had begun serving his sentence, the state moved to correct the sentence under Florida Rule of Criminal Procedure 3.800(a), on the basis that the scoresheet did not reflect that the defendant had been on probation in Tennessee at the time of sentencing, and also did not reflect a third-degree felony committed in Tennessee. The motion additionally stated that during the presentence investigation, the defendant had denied having any record other than that reflected in the PSI. A new sentencing scoresheet was prepared utilizing this additional information, and it reflected a total score of 232 points, placing Senior in the guideline range of four-and-a-half to five-and-a-half years' incarceration. The trial court granted the state's motion and Senior was resentenced to five-years' imprisonment. On appeal Senior contends that the trial court erred in resentencing, since it has no power to correct a legal sentence that is already being served.
Under Florida law, a sentence is not subject to attack under Florida Rule of Criminal Procedure 3.800 or 3.850 if the issue could have been raised on a direct appeal. See Efraimson v. State, 493 So.2d 79 (Fla. 4th DCA 1986); Richardson v. State, 491 So.2d 1242 (Fla. 1st DCA), dismissed, 500 So.2d 545 (Fla.1986); Chippas v. State, 482 So.2d 528 (Fla. 5th DCA 1986); Adams v. State, 462 So.2d 884 (Fla. 2d DCA 1985). Exceptions to this rule are provided by Florida Rule of Criminal Procedure 3.800(a), as recently amended by the Florida Supreme Court in the case of State v. Whitfield, 487 So.2d 1045 (Fla.1986), as follows:
(a) A court may at any time correct an illegal sentence imposed by it or an incorrect calculation made by it in a sentencing guidelines scoresheet.
Several cases have considered situations similar to the present in analyzing whether an illegal sentence has been imposed. In Doe v. State, 492 So.2d 842 (Fla. 1st DCA 1986), it was learned during the first sentencing hearing that the defendant, who had pled guilty to two counts of robbery with a firearm, was proceeding under a false identity. Nevertheless, the state requested the defendant be sentenced as a "John Doe" and receive the four-and-a-half-year prison sentence recommended by the guideline score sheet. The court did so. Approximately three months later, the state learned the defendant's true identity and discovered that he had a significant criminal record in Canada. The state then filed a 3.800(a) motion, contending that the original sentence was illegal as defendant had caused the court to be denied information necessary to properly sentence him under the guidelines. The trial court granted the state's motion and resentenced the defendant. The First District reversed, holding We disagree with the trial court that the original 4 1/2 year sentence imposed, in part, upon the subterfuge of the defendant constituted an illegal sentence that could be corrected under ... 3.800(a). The term of 4 1/2 years was a legal sentence that fell well within the statutory maximum of life imprisonment. A trial court is without authority to increase a legal sentence. Hinton v. State, 446 So.2d 712 (Fla. 2d DCA 1984), and Cherry v. State, 439 So.2d 998 (Fla. 4th DCA 1983).
Under the Doe rationale, it would appear that the first sentence in the present case was legal, and thus is not subject to vacation. However, recent case law has clouded the issue. State v. Whitfield, supra, contains dictum which suggests that any error resulting in an unauthorized departure from the sentencing guidelines is illegal:
Rhoden [State v. Rhoden, 448 So.2d 1013 (Fla. 1984) ], Walker [v. State, 462 So.2d 452 (Fla.1985) ], and Snow [State v. Snow, 462 So.2d 455 (Fla.1985) ] all concerned instances where the trial court sentenced in reliance on statute but failed to make the specific findings which the statutes in question mandatorily require as a prerequisite to the sentence. An alternative way of stating the ground on which Rhoden, Walker and Snow rest is that the absence of the statutorily mandated findings rendered the sentences illegal because, in their absence, there was no statutory authority for the sentences.... Sentencing errors which do not produce an illegal sentence or an unauthorized departure from the sentencing guidelines still require a contemporaneous objection if they are to be preserved for appeal.
The later Florida Supreme Court case of State v. Chaplin, 490 So.2d 52 (Fla.1986), narrows the Whitfield dictum, however, by stating:
In State v. Whitfield, ..., we held that a computational error in a sentencing guidelines score sheet could be raised on direct appeal even though a contemporaneous objection was not made at trial, where "the impact of the error was such that the trial court departed from the sentencing guidelines in Rule 3.701 without making the mandatorily written, clear and convincing reasons for departure." At 1047. We also amended Rule of Criminal Procedure 3.800(a) in order to facilitate the correction of these computational errors at the trial court level. Id. at 1047.
Id. at 53. Thus, the Florida Supreme Court appears to be holding that computational errors which result in an unauthorized departure from the sentencing guidelines are, in effect, illegal.
In Whitfield, the computational error was the inclusion of points for victim injury, even though victim injury was not an element of the crime. In Chaplin, the error was the scoring of a prior conviction for assault with intent to commit robbery as a prior category (3) offense (i.e., a prior robbery offense). The Florida Supreme Court held that both of these errors were subject to 3.800(a) motions and did not require a contemporaneous objection. However, both of these errors were errors of law rather than errors of fact and were apparent from a reading of the initial sentencing records. In the...
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...rather than the three prior felony convictions referenced on his scoresheet, was not evident from the record); Senior v. State, 502 So.2d 1360 (Fla. 5th DCA), rev. denied, 511 So.2d 299 (Fla.1987) (prosecution's contention that defendant had an additional prior felony conviction that had no......