Stubbs v. State, 2D05-4864.

Decision Date09 February 2007
Docket NumberNo. 2D05-4864.,2D05-4864.
Citation951 So.2d 910
PartiesMichael STUBBS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.

PER CURIAM.

In this appeal, Michael Stubbs challenges the accuracy of the scoresheet prepared when he was first sentenced and subsequently used to determine his sentence at a probation revocation hearing. Because the trial court erred by refusing to permit Stubbs to challenge the inclusion of victim injury and legal constraint points on the scoresheet, we reverse and remand for a new sentencing hearing.

In 1993, Stubbs pleaded no contest to a charge of grand theft and to two counts of armed robbery. All of the offenses were committed in 1992. On the armed robbery charges, Stubbs was sentenced to ten years' imprisonment with a three-year minimum mandatory followed by fifteen years of probation. On the grand theft charge, Stubbs was sentenced to five years of probation. Stubbs did not file a direct appeal. After his release from prison in December 2004, Stubbs violated his probation, which was ultimately revoked.

Stubbs' original scoresheet reflected a total of 192 points which with a one-cell bump for sentencing after revocation of probation made him eligible for a maximum guidelines sentence of twenty-two years' imprisonment. However, Stubbs' defense counsel argued that seven victim injury points were improperly assessed because the State had failed to prove victim injury. The trial court rejected the argument stating, "I don't believe we need to do that because we are here on a violation of probation and not on the original sentencing." Defense counsel then argued that inclusion of seventeen points for a legal constraint violation was improper because there was no proof Stubbs had been on any type of supervision at the time of the primary offenses (grand theft and armed robbery). That argument was also rejected by the trial court, and Stubbs was sentenced to twenty-two years' imprisonment on the armed robbery charges with credit for time served. On the grand theft charge, he was sentenced to five years' imprisonment.

The trial court erred when it prevented Stubbs from challenging the imposition of the victim injury and legal constraint points at resentencing. "[A] defendant may challenge the inclusion of [sentencing] points at a revocation proceeding even when those points were not challenged at the original sentencing or on direct appeal." Matton v. State, 872 So.2d 308, 312 (Fla. 2d DCA 2004); see also West v. State, 823 So.2d 174, 174 (Fla. 2d DCA 2002); Spell v. State, 731 So.2d 9, 10 (Fla. 2d DCA 1999); Bogan v. State, 725 So.2d 1216, 1217 (Fla. 2d DCA 1999). This rule applies even where the defendant pleads pursuant to a negotiated plea if he or she did not specifically agree to the inclusion of the points on the scoresheet. See Wright v. State, 707 So.2d 385, 385 (Fla. 2d DCA 1998).

Here, there is no indication in the record that Stubbs agreed as part of his negotiated plea to the inclusion of victim injury and legal constraint points. Accordingly, the trial court erred when it refused to permit Stubbs to challenge the inclusion of victim injury and legal constraint points at sentencing following revocation of probation.

If the points on Stubbs' scoresheet for victim injury and legal constraint were removed, the total points would be reduced from 192 to 168. Taking into account the one-cell bump for sentencing after revocation of probation, see Fla. R.Crim. P. 3.701(d)(14), the reduction in points would result in a one-cell reduction with a maximum guidelines sentence of only seventeen years instead of twenty-two years, see Fla. R.Crim. P. 3.988(c). Therefore, the error asserted by Stubbs cannot be considered harmless. See State v. Montague, 682 So.2d 1085, 1087 n. 3 (Fla.1996). We therefore reverse and remand for further proceedings on the issue of whether the victim injury and legal constraint points were properly scored.

We recognize, as we did in Spell and Bogan, that this decision is in conflict...

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4 cases
  • Tasker v. State
    • United States
    • United States State Supreme Court of Florida
    • November 10, 2010
    ...court certified that its decision is in direct conflict with the decisions of the Second District Court of Appeal in Stubbs v. State, 951 So.2d 910 (Fla. 2d DCA 2007), Spell v. State, 731 So.2d 9 (Fla. 2d DCA 1999), and Bogan v. State, 725 So.2d 1216 (Fla. 2d DCA 1999). We have jurisdiction......
  • Tasker v. State
    • United States
    • Court of Appeal of Florida (US)
    • June 24, 2009
    ...review only proceedings after the order of probation." We acknowledge other districts have held to the contrary. See Stubbs v. State, 951 So.2d 910 (Fla. 2d DCA 2007)(holding that trial court erred in refusing to allow defendant to challenge the inclusion of victim injury and legal constrai......
  • Bowman v. State
    • United States
    • Court of Appeal of Florida (US)
    • February 25, 2008
    ...not reach any question concerning the errors. See Fitzhugh v. State, 698 So.2d 571, 573 (Fla. 1st DCA 1997). But see Stubbs v. State, 951 So.2d 910, 911 (Fla. 2d DCA 2007) ("[A] defendant may challenge the inclusion of [sentencing] points at a revocation proceeding even when those points we......
  • Bryant v. State, No. 4D08-1134 (Fla. App. 12/30/2009)
    • United States
    • Court of Appeal of Florida (US)
    • December 30, 2009
    ...to a negotiated plea if he or she did not specifically agree to the inclusion of the points on the scoresheet. Stubbs v. State, 951 So. 2d 910, 911 (Fla. 2d DCA 2007) (alterations in original; internal citations and quotations omitted). Because the circuit court did not require the state to......

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