ROBERT ROY HENION v. STATE OF FLORIDA , 247 So. 3d 537 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ROBERT ROY HENION,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D17-1193
[May 16, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Usan, Judge; L.T. Case No. 16-9891CF10A.
Carey Haughwout, Public Defender, and Brad R. Schlesinger, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
KLINGENSMITH, J.
Appellant, Robert Roy Henion, was arrested and charged with felony
battery and misdemeanor trespass. Immediately prior to appellant’s plea
hearing, his counsel reminded the trial judge of the judge’s previous
statement that he would be inclined to sentence appellant to eighteen
months in prison followed by two years of community control if appellant
entered an open plea to the charges. After appellant entered his no contest
plea, the judge accepted it, and sentenced him to the agreed-upon eighteen
months in prison with credit for time served followed by two years of
community control for battery. Appellant was also sentenced to sixty days
in jail for trespassing; however, appellant’s credit for time served satisfied
the jail sentence. The sentencing scoresheet was filed later the same day,
but improperly included an additional charge of assault in its calculation,
which caused appellant’s scoresheet to total 38.30 points instead of 38.10.
He argues on appeal that the trial court committed error by sentencing
him based upon an incorrectly calculated scoresheet.
While we agree that the scoresheet was incorrectly calculated, we find
that sentencing was proper because the record shows that the trial judge
would have imposed the same sentence on appellant regardless of the
scoresheet error. Thus, we affirm appellant’s sentence, but remand to the
trial court for the entry of a properly calculated scoresheet. See Brooks v.
State, 969 So. 2d 238, 241 (Fla. 2007) (holding that when scoresheet errors
are presented via (1) direct appeal, (2) Florida Rule of Criminal Procedure
3.800(b), or (3) Florida Rule of Criminal Procedure 3.850, then “any error
is harmless if the record conclusively shows that the trial court would have
imposed the same sentence using a correct scoresheet” (alteration in
original)); Montoya v. State, 943 So. 2d 253, 254 (Fla. 3d DCA 2006)
(“Under the ‘would-have-been-imposed’ standard, a scoresheet error
requires resentencing unless the record conclusively shows that the same
sentence would have been imposed using a correct scoresheet . . . .”).
Appellant need not be present for the purposes of correcting the
scoresheet on remand. See, e.g., Thompson v. State, 987 So. 2d 727, 728-
29 (Fla. 4th DCA 2008) (holding that a defendant need not be present when
a court simply corrects a sentencing designation in paperwork without
otherwise changing the actual sentence imposed).
GERBER, C.J., and DAMOORGIAN, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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