Clark v. State ( 2005 )

POLEN, J.

Appellant, Rommel Clark, has timely appealed a final judgment of guilt on the charge of possession of cocaine, arguing the circumstantial evidence was insufficient as a matter of law to show constructive possession. We conclude otherwise, and find that there was sufficient evidence to submit this case to the jury. See L.R.W. v. State, 848 So.2d 1263, 1266 (Fla. 5th DCA 2003) (“If there is room for a difference of opinion between reasonable men with respect to the proof of facts from which an ultimate fact is sought to be established, or if there is room for such differences with respect to an inference which might be drawn from conceded facts, the court should submit the case to the finder of fact.”).

Clark also asserts that the trial court erred by denying his motion to correct sentence, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), because his score sheet was incorrectly calculated resulting in a lowest permissible sentence of 102.9 months of incarceration instead of a lowest permissible sentence of 86.85 months of incarceration. Initially, the State contested the motion arguing that Clark had waived any error, and the trial court denied Clark’s motion. On appeal, however, the State concedes that there are obvious mathematical errors which are apparent on the face of the record, which resulted in Clark receiving a sentence beyond the statutory maximum. Consequently, the State concedes, and we agree, that the trial court erred by denying Clark’s motion.

Accordingly, we affirm Clark’s conviction, but reverse his sentence and remand for resentencing in accordance with this opinion.

AFFIRMED in part, REVERSED in part.

STEVENSON and GROSS, JJ., concur.