Jonathan Somps v. State of Florida , 2015 Fla. App. LEXIS 8029 ( 2015 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JONATHAN SOMPS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D13-3083
[May 27, 2015]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Bernard Bober, Judge; L.T. Case Nos. 10-19032 CF10A
and 10-19787 CF10A.
Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Catherine
Linton, Assistant Attorney General, West Palm Beach, for appellee.
DAMOORGIAN, C.J.,
Jonathan Somps appeals the trial court’s orders revoking his
probation in two separate cases. We affirm in part, reverse in part, and
remand for resentencing.
By way of background, Appellant was arrested and charged with one
count of grand theft and one count of resisting an officer without
violence. He was also arrested and charged in a separate case with one
count of grand theft auto, one count of leaving the scene of a crash with
personal injuries, one count of petit theft, and one count of resisting an
officer without violence. Appellant negotiated a plea in both cases and
was sentenced to concurrent five-year probation sentences for grand
theft, grand theft auto, and leaving the scene of a crash with personal
injuries. The court sentenced Appellant to time served for petit theft and
the two counts of resisting an officer without violence.1
1 Time served amounted to five days in one case and eleven days in the
other.
Three months later, the state charged Appellant with violating several
conditions of his probation. After a violation of probation (“VOP”)
hearing, the trial court revoked Appellant’s probation. During
sentencing, the trial court scored leaving the scene of an accident with
personal injuries as the primary offense on Appellant’s scoresheet and
the remaining offenses scored as additional offenses. There was some
discrepancy as to the amount of jail credit Appellant was entitled to, but
Appellant ultimately agreed to credit for 538 days. Although Appellant’s
lowest permissible sentence was 13.05 months, the trial court imposed
concurrent 48-month prison terms with credit for 538 days served. This
appeal follows.
On appeal, Appellant maintains that the trial court erred by: (1)
revoking his probation based on a ground not alleged in the affidavit; (2)
considering impermissible factors during sentencing; (3) failing to award
him full jail credit, and (4) scoring three misdemeanor charges as
additional offenses on his scoresheet. We affirm on the first three issues
without further discussion. However, we find merit in Appellant’s
argument concerning his scoresheet and, therefore, reverse and remand
for resentencing.
Because Appellant’s argument concerning his scoresheet presents a
pure issue of law, we apply the de novo standard of review. Sanders v.
State, 35 So. 3d 864, 868 (Fla. 2010).
Appellant argues that the trial court erred in scoring his charges for
petit theft and two counts of resisting an officer without violence as
additional offenses because the charges were not pending before the
court for sentencing following his VOP. We agree.
A defendant’s scoresheet sets forth the permissible range for the
sentence a court may impose. See § 921.0024(3), Fla. Stat. (2010). It
“must cover all the defendant’s offenses pending before the court for
sentencing.” § 921.0024(3) Fla. Stat. A defendant is assigned points for
the primary offense and for any additional offenses. § 921.0024(1)(a),
Fla. Stat. A primary offense is “the offense at conviction pending before
the court for sentencing for which the total sentence points recommend a
sanction that is as severe as, or more severe than, the sanction
recommended for any other offense committed by the offender and
pending before the court at sentencing.” § 921.0021(4), Fla. Stat. An
additional offense is “any offense other than the primary offense for
which an offender is convicted and which is pending before the court for
sentencing at the time of the primary offense.” § 921.0021(1), Fla. Stat.
2
An offense should not be scored as an additional offense following the
revocation of a defendant’s probation if the defendant completed his
sentence as to that offense before the VOP occurred. See Sanders, 35 So.
3d at 869 (defendant’s third-degree felonies were not properly scored as
additional offenses following the revocation of his probation because
defendant completed probation as to the third-degree felonies before the
VOP).
Here, Appellant was originally sentenced to concurrent probation
terms in his two underlying cases. In the first case, the court imposed
five years of probation for grand theft and time served for resisting an
officer without violence. In the second case, the court imposed five years
of probation for both grand theft auto and leaving the scene of an
accident with injuries and time served for petit theft and resisting an
officer without violence. Upon the revocation of Appellant’s probation,
Appellant’s scoresheet listed leaving the scene of an accident with
injuries as the primary offense and the remaining charges as additional
offenses. This was error. Appellant completed his sentence for petit theft
and two counts of resisting an officer without violence before the VOP
occurred. Thus, those three offenses were not pending before the court
for sentencing and were erroneously scored as additional offenses on
Appellant’s scoresheet following the revocation of his probation. See id.“When a scoresheet error is challenged on direct appeal, via a motion
under Florida Rule of Criminal Procedure 3.800(b) or via a motion under
Florida Rule of Criminal Procedure 3.850, the error ‘is harmless if the
record conclusively shows that the trial court would have imposed the
same sentence using a correct scoresheet.’” See id. at 870–71 (quoting
Brooks v. State, 969 So. 2d 238, 241 (Fla. 2007)). This standard applies
here because Appellant challenged the scoring of his misdemeanor
offenses in a rule 3.800(b) motion and argued the point on direct appeal.
In Sanders, the scoresheet error was harmful because the lowest
permissible sentence was reduced by almost two years on the corrected
scoresheet and the record showed that the trial judge heavily relied on
the lowest permissible sentence when formulating the defendant’s
sentence. Id. at 871–72. Here, the difference between the lowest
permissible sentence utilized by the trial court and the lowest
permissible sentence on Appellant’s corrected scoresheet is far less
significant. Moreover, the trial court imposed a sentence well above the
lowest permissible sentence—forty-eight months. While this certainly
suggests that the trial court would have imposed the same sentence
using the corrected scoresheet, the record does not conclusively establish
that the trial court would have imposed the same sentence, had the three
3
misdemeanor charges not been scored as additional offenses.
Accordingly, we conclude that the error was harmful and reverse and
remand for resentencing.
Affirmed in part, Reversed in part, and Remanded.
TAYLOR and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
4