Opinion
Case No. 1D04-1335.
Opinion filed October 18, 2004.
An appeal from the Circuit Court for Nassau County, Robert M. Foster, Judge.
Appellant, pro se.
Charlie Crist, Attorney General, and Shasta W. Kruse, Assistant Attorney General, Tallahassee, for Appellee.
The appellant challenges the trial court's summary denial of his Florida Rule of Criminal Procedure 3.800(a) postconviction motion. He raises several claims of scoresheet error, but only two are meritorious and apparent from the face of the scoresheet itself. For the reasons that follow, we reverse in part the summary denial of the appellant's motion, vacate his sentence, and remand to the trial court to resentence the appellant in accordance with a properly calculated scoresheet in the presence of the appellant and his counsel.
On March 18, 1996, the appellant pled guilty to three counts of aggravated assault on an officer and one count of resisting arrest with violence in case numbers 95-334 and 95-0423. He was sentenced to eight years' imprisonment followed by four years' probation on each of the aggravated assault counts and five years' imprisonment followed by four years' probation on the resisting arrest count, with the sentences in both cases to run concurrently. The primary offense, aggravated assault on an officer, occurred on June 1, 1995. On July 27, 2001, the appellant admitted to violating his probation in both cases and received two concurrent sentences of ten years' imprisonment with credit for time served.
The appellant filed the instant motion alleging that the trial court erroneously scored a total of four counts of aggravated assault on an officer, instead of three, and that his primary offense did not qualify for the 1.5 law enforcement officer enhancement multiplier. A claim of over-assessment of points under the sentencing guidelines is properly raised in a 3.800(a) motion if the errors are apparent from the face of the record. See Tanner v. State, 724 So. 2d 643 (Fla. 1st DCA 1999);Fulghum v. State, 774 So. 2d 32 (Fla. 2d DCA 2000).
As the appellant alleges, the record reveals that the trial court erroneously scored four counts of aggravated assault on an officer — one as the primary offense and three as additional offenses — when in fact, the appellant was only charged with three counts of aggravated assault on an officer between the two cases. Furthermore, the trial court erroneously applied the 1.5 law enforcement officer enhancement multiplier, pursuant to Florida Rule of Criminal Procedure 3.703(d)(22), to his total sentence points. Rule 3.703(d)(22) requires that a 1.5 enhancement multiplier be applied when the primary offense is a violation of section 775.0823(10), Florida Statutes, i.e., aggravated assault on law enforcement officer, and occurs after October 1, 1995. The appellant's primary offense was committed on June 1, 1995; therefore, the multiplier did not apply to the appellant. See Lester v. State, 702 So. 2d 598, 599 (Fla. 2d DCA 1997); Madrigal v. State, 683 So. 2d 1093, 1094 (Fla. 4th DCA 1996). Thus, the trial court erred in enhancing the appellant's overall points using the 1.5 multiplier.
The appellant was sentenced to 120 months' imprisonment pursuant to his original scoresheet, which recommended a guideline sentence of 124.7 months' imprisonment, with a range of 93.5 months' to 155.875 months' imprisonment. Had the appellant's scoresheet been properly calculated, he would have been assessed 94.6 total points as opposed to 152.7 points. Under a corrected scoresheet, his recommended sentence would be 80.79 months, with a range of 60.5925 months' to 100.9875 months' imprisonment, which reduces the appellant's sentencing range by one cell and renders his current sentence a departure. The appellant is, therefore, entitled to be resentenced. See Fla.R.Crim.P. 3.988(d).Compare Deparvine v. State, 603 So. 2d 679 (Fla. 1st DCA 1992) (stating that scoresheet errors are not harmless if the corrected total does not correspond to the same guidelines cell as the erroneous total) with Hummel v. State, 782 So. 2d 450, 451 (Fla. 1st DCA 2001) (holding that sentencing errors are harmless where a corrected scoresheet places the appellant in the same cell or where the appellant could have received the same sentence without a departure).
Accordingly, we reverse in part the summary denial of the appellant's motion, vacate his sentence, and remand to the trial court for resentencing in accordance with a properly calculated scoresheet in the presence of the appellant and his appointed counsel. See Bines v. State, 837 So. 2d 1146, 1147 (Fla. 1st DCA 2003). If, on remand, the trial court chooses to impose an upward departure sentence, it should provide proper written reasons for doing so. See Madrigal, 683 So. 2d at 1095.
AFFIRMED in part, REVERSED in part and REMANDED with directions.
BROWNING, LEWIS and POLSTON, JJ., CONCUR.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED