Christopher Busbee v. State of Florida , 2016 Fla. App. LEXIS 5242 ( 2016 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
CHRISTOPHER BUSBEE, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Petitioner, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-4472
STATE OF FLORIDA,
Respondent.
___________________________/
Opinion filed April 6, 2016.
Petition Alleging Ineffective Assistance of Appellate Counsel -- Original
Jurisdiction.
Christopher Busbee, pro se, Petitioner.
Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney
General, Tallahassee, for Respondent.
PER CURIAM.
Christopher Busbee files a petition alleging that his appellate counsel was
ineffective in his direct criminal appeal. We have jurisdiction. See Fla. R. App. P.
9.141(d). For the reasons explained below, we find merit in Busbee’s claims and grant
the petition.
Busbee received 17 overall sentences, all concurrent. At the sentencing hearing,
the trial court announced its intent to sentence Busbee as a habitual felony offender
(“HFO”) on all counts.
Case No. 11-CF-1166
The first three sentences were imposed in a violation of probation case, lower
tribunal case number 11-CF-1166. We first note that the HFO designation in these
three sentences was improper. “If the trial court did not place appellant on probation as
a habitual felony offender, then it cannot sentence him as a habitual felony offender
upon revocation of probation.” Powell v. State, 774 So. 2d 869, 870 (Fla. 1st DCA
2000) (citations omitted). In this case, it is clear that the petitioner was not placed on
probation as a habitual felony offender. Nonetheless, upon violation of probation, he
was sentenced as a habitual felony offender. This was improper. Id.The first sentence imposed was for unarmed burglary of an occupied dwelling,
contrary to sections 810.02(1)(b) and (3)(a), Florida Statutes (2011). This offense is a
second-degree felony punishable by 15 years’ imprisonment. See § 775.082(3)(d), Fla.
Stat. (2011). The court orally pronounced a 15-year sentence, and awarded 293 days’
credit for time served. The written sentence was consistent with the oral
pronouncement. This sentence was legal; 15 years’ imprisonment is the statutory
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maximum for a second-degree felony even without the HFO designation. Id.
The second sentence imposed in that case was for one count of unarmed
burglary of an unoccupied conveyance, contrary to sections 810.02(1)(b) and (4)(b),
Florida Statutes (2011). This offense is a third-degree felony punishable by 5 years’
imprisonment. See § 775.082(3)(e), Fla. Stat. (2011). HFO enhancement allows a
court to sentence a third-degree felony offender to no more than 10 years’
imprisonment. See § 775.084(4)(a)3., Fla. Stat. (2011). That provision provides a
mandatory minimum term of 5 years’ imprisonment for such offenders. Id. However,
as discussed above, the HFO designation was improper. Accordingly, the 5-year
statutory maximum imposed by section 775.082(3)(e) applies. Here, the trial court
imposed, orally and in writing, a 15-year sentence.
The question becomes, therefore, whether the lowest permissible sentence in the
Criminal Punishment Code (“CPC”) scoresheet utilized in this case created an
exception to the statutory maximum. “If the lowest permissible sentence under the
Code exceeds the statutory maximum sentence as provided in section 775.082, the
sentence required by the Code must be imposed.” Fla. R. Crim. P. 3.704(25); see also
§ 921.0024(2), Fla. Stat. (2011). However, “when section 921.0024(2) applies so that
the statutory maximum sentence . . . is exceeded by the lowest permissible sentence
under the code, the lowest permissible sentence under the code becomes the maximum
sentence which the trial judge can impose.” Butler v. State, 838 So. 2d 554, 556 (Fla.
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2003). Here, the CPC scoresheet listed a lowest permissible sentence of 140.175
months, and we find no error in that calculation. Per section 921.0024(2) and Butler,
this approximately 11.7 year calculation becomes the required sentence for this count;
because the lowest permissible sentence exceeded the statutory maximum, the trial
court was required to impose the CPC sentence, but could not exceed the lowest
permissible sentence itself. In short, the trial court was required to impose a sentence
of 140.175 months (or roughly 11.7 years) on this count, and instead imposed a 15-
year sentence. This sentence is, accordingly, illegal.
The third sentence was for second-degree petit theft, third subsequent offense,
contrary to sections 812.014(1)(a-b), (3)(a), and (c), Florida Statutes. This offense is a
third-degree felony punishable by 5 years’ imprisonment. See § 775.082(3)(e), Fla.
Stat. (2011). Similar to the above count, the trial court imposed, orally and in writing,
a 15-year sentence. The above analysis controls this count as well; the trial court was
required to impose the lowest permissible CPC sentence of 140.175 months. The 15-
year sentence is illegal.
Case No. 12-CF-960
Busbee received two sentences in lower tribunal case number 12-CF-960. The
first was for unarmed burglary of an unoccupied conveyance, contrary to sections
810.02(1)(b) and (4)(b), Florida Statutes (2012). This offense is a third-degree felony
punishable by 5 years’ imprisonment. See § 775.082(3)(e), Fla. Stat. (2012). HFO
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enhancement allows a court to sentence a third-degree felony offender to no more than
10 years’ imprisonment. See § 775.084(4)(a)3., Fla. Stat. (2012). The trial court
orally announced a five-year sentence on this count, but imposed an inconsistent
written sentence of 15 years’ imprisonment. The oral pronouncement controls over the
written sentence where there is a discrepancy. Williams v. State, 957 So. 2d 600, 602
(Fla. 2007). The orally pronounced sentence was legal. However, a discrepancy
remains between the oral and written sentence on this count.
The second sentence that Busbee received in this case was for second-degree
petit theft, third subsequent offense, contrary to sections 812.014(1)(a-b), (3)(a), and
(c), Florida Statutes. This offense is a third-degree felony punishable by 5 years’
imprisonment. See § 775.082(3)(e), Fla. Stat. (2012). HFO enhancement allows a
court to sentence a third-degree felony offender to no more than 10 years’
imprisonment. See § 775.084(4)(a)3., Fla. Stat. (2012). As on the above count, trial
court orally announced a five-year sentence on this count, but imposed a written
sentence of 15 years’ imprisonment. The orally pronounced sentence was legal. The
trial court also, although announcing its intent to sentence the petitioner as an HFO on
all counts, neglected to include the HFO designation in the written sentence for these
two counts. Finally, at the sentencing hearing, the trial court erroneously announced a
five-year sentence for a nonexistent third count in this case.
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Case No. 12-CF-961
Next, Busbee received three sentences in lower tribunal case number 12-CF-961.
The first was for unarmed burglary of an occupied dwelling, contrary to sections
810.02(1)(b) and (3)(a), Florida Statutes (2012). This offense is a second-degree
felony punishable by 15 years’ imprisonment. See § 775.082(3)(d), Fla. Stat. (2012).
The trial court imposed a 15-year sentence on this count orally and in writing.
However, the written sentence omitted the HFO designation for this count and the
others in this case.
The second sentence in this case was for third-degree grand theft, contrary to
sections 812.014(1)(a, b) and (2)(c)(1), Florida Statutes (2012). This offense is a third-
degree felony punishable by 5 years’ imprisonment. See § 775.082(3)(e), Fla. Stat.
(2012). HFO enhancement allows a court to sentence a third-degree felony offender to
no more than 10 years’ imprisonment. See § 775.084(4)(a)3., Fla. Stat. (2012). The
trial court orally pronounced a five-year sentence, but imposed a written 15-year
sentence, and failed to include the HFO designation in the written sentence.
The next sentence was for one count of criminal mischief resulting in property
damage of $1,000 or more, contrary to sections 806.13(1)(a)(3) and (1)(b)(3), Florida
Statutes (2012). This offense is a third-degree felony punishable by 5 years’
imprisonment. See § 775.082(3)(e), Fla. Stat. (2012). HFO enhancement allows a
court to sentence a third-degree felony offender to no more than 10 years’
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imprisonment. See § 775.084(4)(a)3., Fla. Stat. (2012). The trial court orally
pronounced a five-year sentence, but imposed a written 15-year sentence, and failed to
include the HFO designation in the written sentence.
Case No. 12-CF-1253
The petitioner was sentenced for three counts in lower tribunal case number 12-
CF-1253. The first two counts were for burglary of an unoccupied structure, contrary
to sections 810.02(1)(b) and (4)(a), Florida Statutes (2012). This offense is a third-
degree felony punishable by 5 years’ imprisonment. See § 775.082(3)(e), Fla. Stat.
(2012). HFO enhancement allows a court to sentence a third-degree felony offender to
no more than 10 years’ imprisonment. See § 775.084(4)(a)3., Fla. Stat. (2012). The
trial court orally announced a 10-year sentence on each of these counts, and the written
sentences were consistent with this pronouncement. However, the written sentences
omitted the HFO designation announced at sentencing.
The third sentence in this case was for second-degree petit theft, third
subsequent offense, contrary to sections 812.014(1)(a-b), (3)(a), and (c), Florida
Statutes. This offense is a third-degree felony punishable by 5 years’ imprisonment.
See § 775.082(3)(e), Fla. Stat. (2012). HFO enhancement allows a court to sentence a
third-degree felony offender to no more than 10 years’ imprisonment. See §
775.084(4)(a)3., Fla. Stat. (2012). The trial court orally announced a 10-year sentence
on each of these counts, and the written sentences were consistent with this
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pronouncement. However, the written sentences omitted the HFO designation
announced at sentencing.
Case No. 12-CF-1254
The petitioner received six sentences in lower tribunal case number 12-CF-1254.
The first such sentence was for aggravated battery with great bodily harm, permanent
disability, or permanent disfigurement, contrary to section 784.045(1)(a)(1), Florida
Statutes (2012). This offense is a second-degree felony punishable by 15 years’
imprisonment. See § 775.082(3)(d), Fla. Stat. (2012). The trial court imposed a 15-
year sentence on this count orally and in writing. However, the written sentence
omitted the HFO designation for this count and the others in this case.
The second sentence in this case was for one count of aggravated assault with a
deadly weapon without intent to kill, contrary to section 784.021(1)(a), Florida Statutes
(2012). This offense is a third-degree felony punishable by 5 years’ imprisonment.
See § 775.082(3)(e), Fla. Stat. (2012). HFO enhancement allows a court to sentence a
third-degree felony offender to no more than 10 years’ imprisonment. See §
775.084(4)(a)3., Fla. Stat. (2012). The trial court orally announced a 10-year sentence
on this count, but the written sentence imposed a five-year term of probation only.
The third sentence in this case was for burglary of an unoccupied structure,
contrary to sections 810.02(1)(b) and (4)(a), Florida Statutes (2012). This offense is a
third-degree felony punishable by 5 years’ imprisonment. See § 775.082(3)(e), Fla.
8
Stat. (2012). HFO enhancement allows a court to sentence a third-degree felony
offender to no more than 10 years’ imprisonment. See § 775.084(4)(a)3., Fla. Stat.
(2012). The trial court orally announced a 10-year sentence on this count, but the
written sentence imposed a five-year term of probation only.
The next sentence imposed in that case was for one count of unarmed burglary
of an unoccupied conveyance, contrary to sections 810.02(1)(b) and (4)(b), Florida
Statutes (2012). This offense is a third-degree felony punishable by 5 years’
imprisonment. See § 775.082(3)(e), Fla. Stat. (2012). HFO enhancement allows a
court to sentence a third-degree felony offender to no more than 10 years’
imprisonment. See § 775.084(4)(a)3., Fla. Stat. (2012). The trial court orally
announced a 10-year sentence on this count, but the written sentence imposed a five-
year term of probation only.
The trial court next sentenced the petitioner for third-degree grand theft,
contrary to sections 812.014(1)(a, b) and (2)(c)(1), Florida Statutes (2012). This
offense is a third-degree felony punishable by 5 years’ imprisonment. See §
775.082(3)(e), Fla. Stat. (2012). HFO enhancement allows a court to sentence a third-
degree felony offender to no more than 10 years’ imprisonment. See §
775.084(4)(a)3., Fla. Stat. (2012). The trial court orally announced a 10-year sentence
on this count, but the written sentence imposed a five-year term of probation only.
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The final sentence in this case was for one count of resisting an officer without
violence, contrary to section 843.02, Florida Statutes (2012). This is a first-degree
misdemeanor punishable by a term of imprisonment not to exceed one year. See §
775.082(4)(a), Fla. Stat. (2012). The trial court orally announced a sentence of 364
days’ imprisonment on this count, and the written sentence was consistent with this
pronouncement.
Conclusion
In sum, the petitioner received illegal sentences in the second and third count of
lower tribunal case number 11-CF-1166. All three sentences in that case included an
improper HFO designation. The written sentences in all of the other cases (12-CF-960,
12-CF-961, 12-CF-1253, and 12-CF-1254) omitted the HFO designation. The oral and
written sentences were inconsistent in case number 12-CF-960 (both counts), the
second and third count in case number 12-CF-961, and the second through fifth counts
in case number 12-CF-1254.
Where a sentencing error could have been preserved via a meritorious rule
3.800(b)(2) motion, appellate counsel’s failure to do so constitutes ineffective
assistance. See, e.g., Anderson v. State, 988 So. 2d 144, 146 (Fla. 1st DCA 2008).
Here, the petitioner received two manifestly illegal sentences in the second and third
count of case number 11-CF-1166. Of the remaining 15 sentences, 14 of the written
sentences were inconsistent with the oral pronouncements, either through omission of
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the HFO designation or through the written sentences themselves being inconsistent
with the oral pronouncements.
“Written sentences must comport with the sentence that is orally pronounced,
and when the two are inconsistent, the oral pronouncement controls.” Allen v. State,
940 So. 2d 1270 (Fla. 1st DCA 2006) (citing Ashley v. State, 850 So. 2d 1265, 1268
(Fla. 2003)). Here, as described above, in all of the counts in which the oral
pronouncements were inconsistent with the written sentences, the oral pronouncements
were legal. However, the written sentences must be corrected to conform to the oral
pronouncements. See, e.g., Rivera v. State, 117 So. 3d 449, 449-50 (Fla. 2d DCA
2013).
Accordingly, we vacate all of the petitioner’s sentences except for the sentence
in the first count of lower tribunal case number 11-CF-1166, 1 which was legal even
without the HFO designation, and remand for resentencing consistent with this
opinion. We note that this outcome does not actually change the length of the
petitioner’s incarceration, given that we are not vacating the first 15-year sentence in
case number 11-CF-1166 and all sentences were imposed concurrently.
PETITION GRANTED; REMANDED FOR RESENTENCING ONLY.
LEWIS, SWANSON, and WINOKUR, JJ., CONCUR.
1
We do, however, vacate the HFO designation on that count, as with the other two
counts in that case.
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