ERICA ABRAHAM v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ERICA ABRAHAM,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-2408
[June 8, 2022]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Andrew L. Siegel, Judge; L.T. Case Nos. 17-2138 CF10A,
17-1636 CF10A, 17-2672 CF10A, 17-898 CF10A, 17-4930 CF10A.
Carey Haughwout, Public Defender, and Breanna Atwood, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and MaryEllen M.
Farrell, Assistant Attorney General, West Palm Beach, for appellee.
FORST, J.
Appellant Erica Abraham argues the trial court erred in determining
her sentence using an improperly calculated scoresheet. We agree,
reversing the trial court’s sentencing order and remanding this case for re-
sentencing using a corrected scoresheet. We affirm on all other issues
raised in the appeal.
Background
Appellant was charged with a total of eight offenses, including
carjacking, assault both with and without a weapon, battery, grand theft,
and forgery. The trial court appointed experts to examine Appellant’s
competency to stand trial. Appellant was initially found incompetent and
committed to the custody of the Department of Children and Families
(“DCF”). Subsequently, DCF reported its opinion that Appellant was
competent to proceed. A competency hearing was convened, at which
Appellant’s counsel testified they “felt comfortable stipulating to
[Appellant’s] competency . . . .” Citing counsel’s stipulation, the trial court
entered an order finding Appellant “[c]ompetent by stipulation of the
parties.”
Appellant next entered a no contest plea to all eight charges. After
conducting a plea colloquy with Appellant, the trial court accepted
Appellant’s plea and scheduled a sentencing hearing.
At sentencing, the State presented a scoresheet recommending the trial
court sentence Appellant to 250 months in prison. In response,
Appellant’s counsel filed a motion for downward departure and requested
a youthful offender designation. The trial court opted to grant Appellant’s
downward departure motion—and declined to issue a youthful offender
designation—before ultimately sentencing Appellant to a total of 16.1
years in prison plus ten years of probation.
After filing a timely appeal, Appellant filed two motions to correct
sentencing errors pursuant to Florida Rule of Criminal Procedure
3.800(b)(2). The trial court failed to rule on the second motion within sixty
days; thus, it is deemed denied. Appellant did not file a motion to withdraw
plea.
Analysis
A. Scoresheet errors at sentencing
We review the trial court’s denial of Appellant’s motion to correct
sentencing errors using a de novo standard of review. Brooks v. State, 199
So. 3d 974, 976 (Fla. 4th DCA 2016). Further, “[t]he standard of review
for the legality of a criminal sentence is de novo.” Cruz v. State, 189 So.
3d 822, 832 (Fla. 4th DCA 2015) (quoting State v. Valera, 75 So. 3d 330,
332 (Fla. 4th DCA 2011)).
Appellant claims the trial court erred by relying upon a sentencing
scoresheet containing: (a) improper additional offense points for three
offenses for which she was never charged or convicted, and (b) improper
prior record points for a juvenile offense not found in her record.
Appellant and the State agree the scoresheet contained inaccuracies.
However, the parties disagree as to whether these inaccuracies were
ultimately harmful. Scoresheet errors at sentencing are subject to
harmless error review. See Moreno v. State, 266 So. 3d 1246, 1247 (Fla.
4th DCA 2019) (“A defendant who illustrates an erroneous imposition of
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points on his scoresheet is entitled to have the errors corrected. However,
that defendant is not entitled to resentencing if the errors were harmless.”
(quoting Zelaya v. State, 257 So. 3d 493, 497 (Fla. 4th DCA 2018))).
Generally, a sentence predicated on an inaccurately calculated
scoresheet is proper when the record shows the trial judge would have
imposed the same sentence in the absence of the scoresheet error. See,
e.g., Brooks v. State, 969 So. 2d 238, 241 (Fla. 2007); Henion v. State, 247
So. 3d 537, 538 (Fla. 4th DCA 2018); Montoya v. State, 943 So. 2d 253,
254 (Fla. 3d DCA 2006). Importantly, this standard requires a showing
that the final sentence would have been imposed in the absence of error,
not merely the sentence could have been imposed. State v. Anderson, 905
So. 2d 111, 118 (Fla. 2005). In Anderson, the Florida Supreme Court held
because “it is essential for the trial court to have the benefit of a properly
calculated scoresheet when deciding upon a sentence, . . . the would-have-
been-imposed standard should apply to motions filed under rule 3.850 to
correct scoresheet error.” Id.Nevertheless, Florida courts have found harmful error and reversed
sentences close to “the bottom of the guidelines [where] the record does
not conclusively show that the trial court would have imposed the same
sentence under a corrected scoresheet.” Murphy v. State, 761 So. 2d 1247,
1248 (Fla. 2d DCA 2000). In Cooper v. State, 902 So. 2d 945 (Fla. 4th DCA
2005), we found:
“All defendants are entitled to be sentenced under a
correctly scored and calculated score sheet.” Fortner v.
State, 830 So. 2d 174, 175 (Fla. 2d DCA 2002). It is
undisputed that [the defendant] was not sentenced
under a correct score sheet with respect to the charges
of burglary of a dwelling and dealing in stolen property.
. . . As in Fortner, the transcripts of the plea and
sentencing hearings at bar do not indicate whether the
trial court would have imposed the same sentences if it
had had an accurate score sheet. Accordingly, the error
cannot be deemed harmless and [the defendant]’s
sentences on these charges are reversed with
instructions that he be re-sentenced under a correctly
calculated score sheet.
Id. at 946–47.
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In the instant case, all parties agree Appellant was sentenced pursuant
to an inaccurate scoresheet. Due in part to Appellant’s successful
downward departure motion, the trial court’s sentence—16.1 years in
prison, plus probation—was near the bottom of the inaccurate
scoresheet’s suggested sentence of 20.86 years. Appellant claims the
scoresheet would have recommended a total of 15.88 years in prison if it
had excluded the improper additional offense points and the improper
prior record points. The State does not contest this contention, but merely
emphasizes the error’s harmlessness.
However, the error is not harmless. Using the “would have been
imposed” test, we cannot say with any certainty the trial court would have
arrived at the same conclusion had it utilized an accurate scoresheet,
because its sentence of 16.1 years was above the corrected scoresheet
recommendation of 15.88 years. As a result, we follow Cooper, reverse the
trial court’s sentence, and remand for resentencing to be conducted with
an accurate scoresheet.
B. Competency hearing
Appellant further claims the trial court fundamentally erred when it
entered an order finding her competent to stand trial without conducting
a competency hearing. However, Appellant did not object to the lack of a
competency hearing, nor did she file a motion to withdraw plea prior to
filing her appeal. “[T]here is no fundamental-error exception to the
preservation requirement of [Florida Rule Appellate Procedure]
9.140(b)(2)(A)(ii)(c).” State v. Dortch, 317 So. 3d 1074, 1084 (Fla. 2021).
Accordingly, Appellant’s challenge as to the involuntariness of her plea
cannot be considered by this Court on direct appeal.
Conclusion
As set forth above, Appellant failed to preserve her challenge to the trial
court’s determination of competency. Per Dortch, any trial court error was
not fundamental and thus not subject to our review on direct appeal.
As to the scoresheet issue, we cannot say for certain whether the trial
court would have imposed the same sentence if provided with an accurate
scoresheet. Consequently, Appellant’s sentence is reversed. Re-
sentencing is to be under an accurate scoresheet.
Reversed and remanded for further proceedings consistent with this
opinion.
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CONNER, C.J., and ARTAU, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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