Spearing v. State

• Decision Date: 30 January 2007
• Docket Number: No. 1D06-1534.,1D06-1534.
• Citation: 947 So.2d 1235
• Parties: Guy SPEARING, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

947 So.2d 1235

Guy SPEARING, Appellant, v. STATE of Florida, Appellee.

No. 1D06-1534.

District Court of Appeal of Florida, First District.

January 30, 2007.

Guy Spearing, pro se, Appellant.

Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant challenges the trial court's summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) alleging a scoresheet error. We reject the argument that the error is harmless, and reverse.

On October 6, 1993, Appellant pled guilty to two counts of attempted capital sexual battery, lesser-included offenses of capital sexual battery, and was sentenced pursuant to a scoresheet to seven years' imprisonment followed by five years' probation. Appellant was found to have violated his probation on three separate occasions. On the most recent occasion, Appellant was sentenced to 25 years' imprisonment. Appellant filed the instant motion alleging his sentence is illegal arguing his scoresheet erroneously indicates 314 points for the primary offense instead of 259 points, and the sentence imposed could not be imposed under a properly calculated scoresheet with a one-cell bump. The trial court denied the motion based on the State's argument that the error is harmless because Appellant violated probation three times, permitting three cell bumps and a sentencing range from 12-27 years' imprisonment.

If Appellant is correct that he pled to a lesser-included offense, then he was improperly assessed 314 points instead of 259 points because attempted capital sexual battery is a first-degree felony. § 794.02, Fla. Stat. (Supp.1992); § 777.04(4)(c), Fla. Stat. (1991); Fla. R.Crim. P. 3.988(a). Appellant acknowledges the trial court incorporated a one-cell bump at his most recent violation of probation sentencing. This reduction in points, plus the one-cell bump the trial court initially chose to incorporate, decreases Appellant's sentencing exposure to a range of 7-17 years' imprisonment, which is less than his current 25-year sentence.

We reject the contention that the calculation error is harmless. Although the trial court was permitted to incorporate a three-cell bump, increasing Appellant's sentencing range from 12-27 years' imprisonment, which would have resulted in the 25-year sentence being legal, we will not speculate that the trial court would have chosen to do so had Appellant's scoresheet been properly...