BENITO M. MONCADAGONZALEZ v. STATE OF FLORIDA ( 2021 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT BENITO M. MONCADAGONZALEZ, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D19-2031 [April 28, 2021] Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; John J. Murphy, III, Judge; L.T. Case No. 16- 001440CF10A. Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant Public Defender, West Palm Beach, for appellant. Ashley Moody, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellee. KUNTZ, J. Benito Moncadagonzalez raises two issues on appeal. We affirm in part and reverse in part. First, Moncadagonzalez argues the court erred when it denied a motion for continuance. On this issue, we affirm without further discussion. With respect to the two counts for which Moncadagonzalez was sentenced to time in prison (counts 4 and 5), he argues that he had a right to be sentenced under a correctly scored and calculated scoresheet. He claims the court erred when it denied his motion to correct sentencing error because the scoresheet listed the wrong primary offense. On this point, the state agrees that the scoresheet both listed the wrong primary offense and incorrectly included offenses for which Moncadagonzalez was found not guilty. Finally, both Moncadagonzalez and the state agree the error was not harmless. The court initially inadvertently announced it was sentencing Moncadagonzalez to an amount of time in prison that fell below the lowest permissible prison sentence. After counsel informed the court that this sentence fell below the lowest permissible sentence, the court corrected itself. The court determined that “[its] sentence [wa]s inappropriate. The minimum sentence permissible on the score sheet . . . is the 251.25 months Florida State Prison” and “[t]hat’s what [it] need[ed] to sentence him [to.]” As such, the court raised the sentence to the lowest permissible prison sentence. But a correct scoresheet would have reduced the lowest permissible prison sentence from 251.25 months to 217.5 months. Based on this error and the circuit court’s comments, we reverse and remand for resentencing on counts 4 and 5. 1 Affirmed in part and reversed in part. GERBER and FORST, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 1 Moncadagonzalez does not challenge his sentence on Counts 6 and 7. 2