Terry D. Ellison, Jr. v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-1629
_____________________________
TERRY D. ELLISON, JR.,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
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Petition for Writ of Habeas Corpus—Original Jurisdiction.
April 29, 2019
PER CURIAM.
In the instant petition alleging ineffective assistance of
appellate counsel, Terry Ellison, Jr. claims his appellate counsel
failed to file a rule 3.800(b)(2) motion to preserve a sentencing
error—that his scoresheet improperly included an “adult-on-minor
sex offense” multiplier. He argues that the inclusion of this
multiplier effectively doubled the sentencing points. We
determine that this claim may be raised in the instant petition,
see, e.g., Marshall v. State, 241 So. 3d 969 (Fla. 1st DCA 2018), and
grant the petition.
Petitioner correctly contends that his scoresheet was
incorrect. The “adult-on-minor sex offense” multiplier in section
921.0024(1)(b), Florida Statutes, applies only to certain offenses
listed in the statute. Petitioner’s offense, unlawful sexual activity
under section 794.05, Florida Statutes, is not a listed offense.
Therefore, the multiplier did not apply to Petitioner as a matter of
law, and appellate counsel was ineffective in failing to move to
correct the sentence.
This scoresheet error was not harmless. The record does not
show that the trial court “would-have-imposed” the same sentence
using a correct scoresheet. See Sanders v. State, 35 So. 3d 864,
870-71 (Fla. 2010); Ray v. State, 987 So. 2d 155, 156 (Fla. 1st DCA
2008). Petitioner was sentenced to 153 months in prison, which
was the lowest permissible sentence under the incorrect
scoresheet. Although this sentence falls within the permissible
range under a corrected scoresheet, the trial court made no
statement that it would have otherwise imposed the same sentence
absent the scoresheet error.
Accordingly, we vacate Petitioner’s sentence and remand for
a new sentencing proceeding using a corrected scoresheet. See
Anderson v. State, 988 So. 2d 144, 146 (Fla. 1st DCA 2008)
(“[W]here a second appeal would be redundant or unnecessary, it
is appropriate to simply grant petitioner the relief to which he
would have been entitled had the issue been raised in the original
appeal.”).
PETITION GRANTED.
WETHERELL, BILBREY, and M.K. THOMAS, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Robert David Malove of the Law Office of Robert David Malove,
P.A., Fort Lauderdale, for Petitioner.
Ashley Moody, Attorney General, and Amanda D. Stokes,
Assistant Attorney General, Tallahassee, for Respondent.
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