DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BRIAN SHANE BURKEEN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D20-1646
[January 20, 2021]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Dan L. Vaughn, Judge; L.T. Case No.
312018CF000406A.
Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Deborah Koenig,
Assistant Attorney General, West Palm Beach, for appellee.
ON CONFESSION OF ERROR
ARTAU, J.
The trial court adjudicated the defendant guilty following the entry of
his open plea of nolo contendere to the charged offense of first degree
felony grand theft. The defendant appeals, claiming he was erroneously
sentenced as if he was charged with aggravated white-collar crime, an
offense separate and distinct from that to which he pled, resulting in his
primary offense at sentencing being scored incorrectly on his sentencing
guidelines scoresheet. The State agrees and confesses error.
The record confirms that this scoresheet error was preserved by the
defendant through his timely filed post-sentencing Rule 3.800(b)(2)
motion. 1 See Jackson v. State,
983 So. 2d 562, 572 (Fla. 2008) (sentencing
guidelines scoresheet error is properly preserved through a Rule
————————————————————————————————————
1Fla. R. Crim. P. 3.800(b)(2) (“If an appeal is pending, a defendant . . . may file in
the trial court a motion to correct a sentencing error.”).
3.800(b)(2) motion) (citing State v. Anderson,
905 So. 2d 111, 118 (Fla.
2005)). Moreover, the record does not conclusively show that the same
sentence would have been imposed using a correctly computed scoresheet.
See Anderson,
905 So. 2d at 115-16 (requiring reversal of a sentence if an
appellate court “cannot determine conclusively from the record that the
trial court would have imposed the same sentence despite the erroneous
scoresheet”). As confessed by the State, we reverse the defendant's
sentence and remand for resentencing pursuant to a properly computed
sentencing guidelines scoresheet.
Reversed and remanded with instructions for resentencing.
GERBER and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2
