Thomas v. State, 4D11–3982.

• Decision Date: 13 November 2013
• Docket Number: No. 4D11–3982.,4D11–3982.
• Citation: 126 So.3d 436
• Parties: Robert THOMAS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

126 So.3d 436

Robert THOMAS, Appellant,

v.STATE of Florida, Appellee.

No. 4D11–3982.

District Court of Appeal of Florida, Fourth District.

Nov. 13, 2013.

Appeal of order denying rule 3.800 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Bernard I. Bober, Judge; L.T. Case No. 98–8662 CF10A.

Robert Thomas, Jasper, pro se.

No appearance required for appellee.

PER CURIAM.

We affirm the denial of appellant's motion to correct a scoresheet error. To the extent that appellant claims that the entry of “LIFE” as his maximum sentence on the scoresheet is an error, the same sentence of life could have been imposed absent the alleged error, because his total sentence points exceeded 363, which pursuant to section 921.0014(2), Florida Statutes (1998), authorizes a life sentence. See Brooks v. State, 969 So.2d 238, 243 (Fla.2007) (correction of scoresheet error not required where same sentence could have been imposed absent scoresheet error). To the extent he claims that the trial court departed from the sentencing guidelines without written reasons, he is not entitled to relief under rule 3.800(a), Florida Rules of Criminal Procedure. See Davis v. State, 661 So.2d 1193 (Fla.1995) (failure to file written findings for a departure sentence does not constitute an illegal sentence that can be challenged under rule 3.800(a)), receded from on other grounds by Mack v. State, 823 So.2d 746, 748–49 (Fla.2002); see also Wright v. State, 911 So.2d 81, 83–84 (Fla.2005) (relying on Davis ' holding that failure to file written reasons for departure does not make sentence illegal and acknowledging that Davis was receded from on other grounds in Mack ).

Affirmed.

STEVENSON and CIKLIN, JJ., concur.

WARNER, J., concurs specially.

WARNER, J., concurring specially.

I agree with the majority. I would add, however, that much of appellant's argument that his life sentence was illegal is based upon Franco v. State, 777 So.2d 1138, 1140–42 (Fla. 4th DCA 2001), which held that a life sentence imposed where total sentencing points exceed 363, as permitted under section 921.0014(2), is a departure sentence which must be supported with written reasons. I think Franco was wrongly decided. All other courts which have reviewed this statute also disagree with Franco. See, e.g., Kalapp v. State, 729 So.2d 987, 990 (Fla. 5th DCA 1999); Cash v. State, 779 So.2d 425, 425 (Fla. 2d DCA 2000); Byrd v. State, 841 So.2d 502, 503 (Fla. 3d DCA 2003). Receding from Franco, however, is not essential to the result in this case.