State v. Anderson

• Decision Date: 16 June 2005
• Docket Number: No. SC04-261.,SC04-261.
• Parties: STATE of Florida, Petitioner, v. Jerry D. ANDERSON, Respondent.
• Court: Florida Supreme Court

905 So.2d 111

STATE of Florida, Petitioner, v. Jerry D. ANDERSON, Respondent.

No. SC04-261.

Supreme Court of Florida.

June 16, 2005.

Charles J. Crist, Jr., Attorney General, Tallahassee, Florida, Robert J. Krauss, Chief Assistant Attorney General, Tampa

Criminal Appeals and Ronald Napolitano, Assistant Attorney General, Tampa, Florida, for Petitioner.

James Marion Moorman, Public Defender and Richard J. Sanders, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Respondent.

CANTERO, J.

Faced with dueling tests, we must decide which harmless error standard applies in determining whether a scoresheet error requires resentencing. In this case, the district court, consistent with its prior cases—and with the test used in other districts—used a would-have-been-imposed test. Under that test, a scoresheet error requires resentencing unless the record conclusively shows that the same sentence would have been imposed using a correct scoresheet. See Anderson v. State, 865 So.2d 640, 642 (Fla. 2d DCA 2004)

. The court certified conflict with Hummel v. State, 782 So.2d 450 (Fla. 1st DCA 2001), which applied a could-have-been-imposed test. Under that test, scoresheet error does not require resentencing if the sentence could have been imposed (absent a departure) with a correct scoresheet.¹ This test is much more difficult for a defendant to meet. We have jurisdiction, see art. V, § 3(b)(4), Fla. Const., and granted review to resolve the conflict. See State v. Anderson, 879 So.2d 624 (Fla.2004) (granting review).

In deciding which harmless error standard applied, neither court based its decision on the type of post-conviction motion filed. Rather, both courts applied their respective tests to all post-conviction claims of scoresheet error. As we explain below, we agree with the Second District Court of Appeal that the would-have-been-imposed test should apply to scoresheet error raised either on direct appeal or by motion filed under Florida Rule of Criminal Procedure 3.850. In this case, the defendant raised the claim in a motion filed under rule 3.850. Therefore, we do not decide which standard should apply to motions filed under Florida Rule of Criminal Procedure 3.800(a), which, unlike motions filed under rule 3.850, may be filed "at any time."

I. RELEVANT FACTS

To provide context, we first review the relevant facts of the two conflicting cases. In Anderson, the defendant pled no contest to second-degree attempted murder. Anderson, 865 So.2d at 641. He was sentenced to a downward departure of two years' community control followed by five years' probation. He was later found guilty of violating his probation, and the court sentenced him to ninety months in prison. Id.² After his conviction was final, Anderson filed a timely pro se motion under rule 3.850, alleging, among other things, that the trial court erred in scoring his sentencing guidelines scoresheet. The circuit court agreed, finding that it had used the wrong offense level on the scoresheet. The scoresheet erroneously placed his offense level at 9 instead of 8. This error resulted in 137 total sentence points and a sentencing range of 81.75 to 136.25 months. The court's sentence of 90 months was at the low end of that (erroneous) range. A correct scoresheet would have reflected 120 sentencing points and a sentencing range of 69 to 115 months. The court's sentence would have been in the middle of that (correct) range. Id. at 641-42. Under a would-have-been-imposed test, the court would determine whether it would have imposed a sentence of 90 months had it known that the sentence would lie in the middle, not the low, end of the range. Citing Hummel—the conflict case—however, the trial court denied the motion, finding that Anderson was not "adversely affected" by the error because his sentence fell within the corrected range. Id. at 642.

On appeal, the Second District agreed that Anderson's crime was incorrectly scored, but disagreed with the standard the court applied. Id. The Second District cited to its own precedent and stated that

we have adhered to the view that a scoresheet error, like the error shown by Anderson, requires resentencing unless it can be shown conclusively that the same sentence would have been imposed if the corrected scoresheet had been used by the sentencing court.

Id. Accordingly, the district court remanded, requiring that if the trial court determined the record conclusively demonstrated that the sentence was not affected by the scoresheet error, then the court would have to attach such portions of the record to an order denying relief. Id. at 643. Absent such proof, however, the trial court was instructed to resentence Anderson with a corrected scoresheet. The Second District certified conflict with Hummel. Id.

In Hummel, the defendant filed a motion under rule 3.800(a), claiming that her sentencing scoresheet contained a seven-point error—that is, her prior record points should have numbered nineteen, not twenty-six. Hummel, 782 So.2d at 451. With a corrected scoresheet, she claimed her sentencing range would have been reduced by one cell. The First District Court of Appeal agreed that the record supported her claim, but nevertheless denied relief:

This Court has previously held that "where a guidelines scoresheet error results in a reduced sentencing range of one cell or more, the sentence must be reversed and the case remanded for resentencing based upon a correctly calculated scoresheet." Burrows v. State, 649 So.2d 902, 904 (Fla. 1st DCA 1995). A scoresheet error is harmless, however, where a corrected scoresheet places the appellant in the same cell or where the appellant would have received the same sentence, such as in plea bargain situations. See id. However, in Heggs v. State, 759 So.2d 620 (Fla.2000), the supreme court announced a new harmless error analysis to be applied in dealing with scoresheet inaccuracies. Using the Heggs rationale, we conclude that if a person's sentence imposed under an erroneous scoresheet could have been imposed under a corrected scoresheet (without a departure) then that person shall not be entitled to resentencing.

782 So.2d at 451. Because under a corrected scoresheet, Hummel's "recommended sentence would be the same as imposed and the imposed sentence would be within the new range," the appellate court affirmed the trial court's denial of relief. Id.

II. ANALYSIS

We must decide which harmless error standard should apply in determining whether a scoresheet calculation error raised by post-conviction motion warrants resentencing: (1) whether the record conclusively shows that with a correct scoresheet the same sentence would have been imposed or (2) whether the sentence legally could have been imposed without a departure from the sentencing guidelines. We first discuss the development of each standard. We then resolve the conflict.

A. The Would-Have-Been-Imposed Test

Courts have developed a harmless error analysis to determine whether a scoresheet error must be merely corrected (harmless) or whether the error warrants both correction and resentencing (harmful).³ Under the original sentencing guidelines, the guidelines calculation resulted in a presumptive sentence of a single number of years and a "one-cell" recommended range of years. Fla. R.Crim. P. 3.701(d) (1984). A sentence calculation error was deemed harmful if it fell outside the recommended range.⁴ When amended in 1988, the guidelines provided that the sentence calculation would result in (1) a presumptive sentence, (2) a one-cell recommended range, and (3) a three-cell permitted range. Fla. Rules of Criminal Procedure re Sentencing Guidelines (Rules 3.701 & 3.988), 522 So.2d 374, 377 (Fla.1988). With this change, the district courts developed the test the Second District used in this case. The theory behind it was that a correct scoresheet was essential for the trial court to exercise its discretion in sentencing a defendant. As one court explained:

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. 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.... This rationale is consistent with the theory of the guidelines, recognized soon after the courts of this state began dealing with sentencing guidelines, that a correct calculation of the scoresheet is essential to establish a valid base for the trial court's exercise of its discretion in determining an appropriate sentence under the guidelines. Thus, it has been held, "an incorrectly calculated minimum-maximum sentence range under the guidelines constitutes an erroneous base upon which the trial court exercises its discretion in aggravating the sentence, and requires reversal for resentencing, even in the absence of a contemporaneous objection." Only in circumstances where the appellate court is clearly convinced that the defendant would have received the same sentence notwithstanding the scoresheet error, such as where the sentence was imposed in accordance with a valid plea agreement, have the sentences been affirmed under the harmless error doctrine despite the erroneous score.

Sellers v. State, 578 So.2d 339, 341 (Fla. 1st DCA) (citations omitted) (quoting Higgs v. State, 470 So.2d 75, 76 (Fla. 3d DCA 1985)), approved on other grounds, 586 So.2d 340 (Fla.1991); see, e.g., Mooney v. State, 864 So.2d 60, 62 (Fla. 4th DCA 2003)

(affirming as harmless the denial of a claim of scoresheet calculation error because the record demonstrated that the departure sentence would have been imposed despite the error), review denied, 873 So.2d 1223 (Fla.2004); Bell v. State, 670 So.2d 1133, 1134 (Fla. 2d DCA ...