Tasker v. State

• Decision Date: 10 November 2010
• Docket Number: No. SC09-1281.,SC09-1281.
• Citation: 48 So.3d 798
• Parties: Jamie Lee TASKER, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

48 So.3d 798

Jamie Lee TASKER, Petitioner,

v.STATE of Florida, Respondent.

No. SC09-1281.

Supreme Court of Florida.

Nov. 10, 2010.

Nancy A. Daniels, Public Defender, and Glen Phillip Gifford, Second Judicial Circuit, Tallahassee, FL, for Petitioner.

Bill McCollum, Attorney General, Trisha Meggs Pate, Bureau Chief, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, FL, for Respondent.

LABARGA, J.

This case is before the Court for review of the decision of the First District Court of Appeal in Tasker v. State, 12 So.3d 889 (Fla. 1st DCA 2009). The district 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. See art. V, § 3(b)(4), Fla. Const.

The issue presented in this case is whether a claim of scoresheet error, in this case involving imposition of victim injury points in a Criminal Punishment Code sentencing scoresheet, which is raised for the first time after revocation of probation in a motion filed under Florida Rule of Criminal Procedure 3.800(b)(2), is preserved for review on appeal. As we explain below, we conclude that a claim of scoresheet error pertaining to victim injury points that are included on the scoresheet filed in the initial sentencing proceeding in which the defendant is placed on probation may be raised for the first time in a rule 3.800(b)(2) motion during the appeal from revocation of probation, and the issue is thereby preserved for appellate review. The First District held to the contrary and did not reach the merits of Tasker's claim that sexual contact victim injury points were improperly included on his sentencing scoresheet. Our holding requires us to quash the decision of the First District, and in so doing, we remand to that court the question of whether the victim injury points were improperly imposed.

FACTS AND PROCEDURAL BACKGROUND

Jamie Lee Tasker, age thirty-five at the time of the offenses, was charged by information filed in Suwannee County in October 2004 with one count of lewd and lascivious molestation of a female twelve years of age or older but under the age of sixteen, in violation of section 800.04(5), Florida Statutes (2004). He was also charged with child abuse in violation of section 827.03(1), Florida Statutes (2004), in relation to another child. In December 2004, Tasker pled guilty as charged to both counts.

At the sentencing hearing on January 11, 2005, adjudication was withheld and Tasker was placed on ten years' sex offender probation for Count I, lewd and lascivious molestation, and a concurrent term of five years' probation for Count II, child abuse, all to commence after serving six months in the county jail. He was also formally designated a sex offender subject to all statutory requirements. The Criminal Punishment Code (CPC) scoresheet prepared for this initial sentencing hearing included forty victim injury points for sexualcontact.¹ Tasker did not object at that time to inclusion of the victim injury points on the initial CPC scoresheet and he did not take a direct appeal.

Tasker subsequently violated his probation on several occasions, and was returned to probation each time with additional conditions. However, at a violation of probation hearing on April 12, 2007, Tasker admitted that he tested positive for cocaine use. The disposition hearing was held May 10, 2007, at which Tasker was found to have violated his probation by testing positive for cocaine use. Based on an updated scoresheet, which included the same victim injury points for sexual contact, Tasker was adjudicated guilty and sentenced on Count I, lewd and lascivious molestation of a child, to 120 months in prison. As to Count II, child abuse, Tasker was adjudicated guilty and sentenced to thirty-six months in prison concurrent with the sentence for Count I. Tasker did not object to the scoresheet during the disposition hearing when he was sentenced to prison.

Tasker then appealed to the First District Court of Appeal. During that appeal, but before the first brief was served, Tasker's appellate counsel filed a motion to correct sentencing error in the trial court, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). In the motion, he alleged as a sentencing error that the victim injury points on his CPC sentencing scoresheet were not supported by the record and were therefore improperly included on the scoresheet. Without holding a hearing on the motion, the trial court issued an order on September 10, 2008, denying the motion on the merits. That ruling was included in a supplemental record, which was then filed in Tasker's appeal to the First District pursuant to rule 3.800.

The First District, however, did not reach the merits of Tasker's claim that inclusion of the victim injury points on the scoresheet was error, but ruled instead that the issue was not preserved. See Tasker v. State, 12 So.3d 889, 890 (Fla. 1st DCA 2009). The First District held in pertinent part as follows:

During the pendency of this appeal, appellate counsel filed a motion to correct sentence, pursuant to rule 3.800(b)(2), Florida Rules of Criminal Procedure, challenging the assessment of forty points. The trial court denied the motion.

Under our case authority, appellant has not preserved the issue of the assessment of victim injury points. As we explained in Fitzhugh v. State, 698 So.2d 571, 573 (Fla. 1st DCA 1997), "an appeal from resentencing following violation of probation is not the proper time to assert an error in the original scoresheet." See also Bowman v. State, 974 So.2d 1205 (Fla. 1st DCA 2008). Importantly, section 924.06(2), Florida Statutes (2007), provides that "an appeal of an order revoking probation may 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 constraint points at sentencing following revocation of probation);Spell v. State, 731 So.2d 9 (Fla. 2d DCA 1999) (holding defendant could challenge victim injury points after revocation of community control); Bogan v. State, 725 So.2d 1216 (Fla. 2d DCA 1999) (holding that defendant could challenge assessment of victim injury points in appeal of revocation of probation despite the fact that defendant did not raise the issue at the original sentencing hearing or in a prior appeal); see also Routenberg v. State, 802 So.2d 361 (Fla. 2d DCA 2001) (holding that a claim that victim injury points for penetration were incorrectly assessed on scoresheet could be raised in a rule 3.800(a) motion even after violation of probation); and Wright v. State, 707 So.2d 385 (Fla. 2d DCA 1998) (explaining defendant did not waive right to challenge scoresheet points for victim injury for penetration by not raising issue at original sentencing hearing). We certify conflict with Stubbs, Spell, and Bogan.

Id. at 890-91.

In Stubbs v. State, 951 So.2d 910 (Fla. 2d DCA 2007), the first conflict case, the Second District had for consideration a challenge to the accuracy of a CPC scoresheet that was prepared for Stubbs' first sentencing proceeding, in which he was placed on probation, and was subsequently used to determine his prison sentence after his violation of probation. Stubbs, 951 So.2d at 911. The trial court rejected Stubbs' claim made in the resentencing proceeding after revocation of probation, but the district court reversed. Id. at 911. Citing a number of its earlier decisions, the Second District held that a defendant may challenge the inclusion of victim injury points in a revocation proceeding even when those points were not challenged at the original sentencing or on direct appeal. Id. The Fourth District expressly aligned itself with Stubbs in the case of Bryant v. State, 37 So.3d 269, 271 (Fla. 4th DCA 2009) (holding that a defendant may challenge the inclusion of sentencing points after violation of probation, including in a rule 3.800(b)(2) motion, even when the points were not challenged at the original sentencing or on direct appeal).

In the second conflict case, Spell v. State, 731 So.2d 9 (Fla. 2d DCA 1999), the Second District held that a defendant has the right to challenge victim injury points at a resentencing upon revocation of probation even if the points were not challenged at the original sentencing. Id. at 10. In so holding, the district court found Spell's case indistinguishable from Wright v. State, 707 So.2d 385 (Fla. 2d DCA 1998), in which the Second District previously held that the defendant may object to victim injury points on the scoresheet used at the resentencing after revocation of probation, even if no objection was raised as to the original scoresheet.

In the third conflict case, Bogan v. State, 725 So.2d 1216 (Fla. 2d DCA 1999), the Second District held that the defendant could challenge victim injury points after revocation of his probation even though he failed to object at the original sentencing when he was placed on probation. Id. at 1217. As explained below, we agree with the Second District in Stubbs, Spell and Bogan, and with the Fourth District in Bryant, that a defendant may, after revocation of probation, challenge inclusion of victim injury points in the CPC sentencing scoresheet which is relied upon at the resentencing even if no objection to the scoresheet was raised at the time of the initial sentencing when the defendant was placed on probation. We further hold that where the claim is raised in a rule 3.800(b)(2) motion after revocation of probation, it is thereby preserved for appellate review.

ANALYSIS

In holding that Tasker was barred from appealing the denial of his claim of sentencing error that was raised in a rule...