ODELL ERIC BROWN v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

ODELL ERIC BROWN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D20-1068

[October 21, 2020]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Daliah H. Weiss, Judge; L.T. Case No. 502018CF001795.

Carey Haughwout, Public Defender, and Claire Victoria Madill,

Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Luke R. Napodano,

Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

Odell Eric Brown appeals the trial court’s denial of his motion for

downward departure and his subsequent sentence, citing errors in his

scoresheet. We affirm, without comment, the trial court’s rulings

regarding Brown’s motion for downward departure. However, we agree

that there were errors in his scoresheet and reverse and remand for

resentencing with a corrected scoresheet.

This appeal arises from the resentencing proceedings we mandated in

Brown v. State, 289 So. 3d 932 (Fla. 4th DCA 2020). As we explained in

that case, in 2014, Brown pled guilty to multiple counts in four separate

cases. The trial court granted his motion for downward departure and

sentenced him to thirty-six months in prison followed by eighteen months

of probation. In 2018, when Brown had just finished his prison sentence

and started probation, he committed new law offenses. Brown was

subsequently charged for these new law offenses and for violating his

probation in the 2014 cases. Brown entered a plea to his new law offenses

and to his violations of probation. At the sentencing proceeding in 2018,

the court denied Brown’s motion for downward departure and sentenced

him to the lowest permissible sentence on the new law offenses (79.80

months in prison) and time served on the violations of probation.

Brown appealed that sentence, arguing there were errors in his

scoresheet that required reversal. We agreed with Brown as to one of those

alleged scoresheet errors: his 2014 conviction for grand theft (a Level 2

offense) was improperly classified as a Level 4 offense. Even though this

classification only reduced Brown’s lowest permissible sentence by

approximately two months, we opined that the error was not harmless and

mandated resentencing with a corrected scoresheet.

At resentencing, the State presented a scoresheet that was essentially

the same as the one used at the previous sentencing hearing. The 2014

convictions were listed as “additional offenses,” and the 2018 new law

offenses were listed as “primary offenses.” The only difference between

this scoresheet and the prior scoresheet was that the State changed the

classification of Brown’s 2014 grand theft conviction from a Level 4 offense

to a Level 2 offense in accordance with our prior mandate. This yielded a

lowest permissible sentence of seventy-eight (78) months in prison.

Comparatively, Brown presented a proposed scoresheet that not only

changed the classification of his grand theft conviction, but also listed his

2014 convictions as a part of his “prior record.” Changing Brown’s 2014

convictions from “additional offenses” to his “prior record” yielded a lowest

permissible sentence of 34.05 months in prison. In the end, the trial court

utilized the State’s proposed scoresheet but acknowledged that it had

never seen this issue before and invited this court to “send it back if [it

was] incorrect.” After denying Brown’s motion for downward departure,

the trial court sentenced him to seventy-eight (78) months in prison on the

new law offenses and time served on the violations of probation. This

appeal follows.

The interpretation of statutes and rules of criminal procedure present

a legal question subject to a de novo standard of review. See Sanders v.

State, 35 So. 3d 864, 868 (Fla. 2010).

Before a sentencing proceeding begins, Florida Statutes require that a

Criminal Punishment Code scoresheet be prepared for each defendant “to

determine the permissible range for the sentence that the court may

impose[.]” § 921.0024(3), Fla. Stat. (2020); see Fla. R. Crim. P. 3.992. On

this scoresheet the defendant receives a “total offense score” comprised of

the primary offense they have committed; any additional offenses that may

be before the court; and the victim’s injury. See § 921.0024(1)(a), Fla. Stat.

(2020). The defendant also receives a “prior record score,” which is

comprised of all the offenses they have committed as an adult or juvenile.

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See id.; see also § 921.0021(5), Fla. Stat. (2020) (stating the definition of

prior record). The defendant’s total offense score and prior record score

are added to determine the defendant’s “total sentence points.” See §

921.0024(1)(a), Fla. Stat. (2020).

At sentencing, only one offense, typically the most severe offense, can

be classified as the “primary offense.” See § 921.0021(4), Fla. Stat. (2020).

All others are listed as “additional offense[s]” which are defined as offenses

“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. (2020).

In Sanders, the Florida Supreme Court discussed whether an offense

could be properly classified as an “additional offense” on a defendant’s

scoresheet. 35 So. 3d at 864. There, the defendant entered a plea to five

offenses (robbery, aggravated battery, criminal mischief, attempted

burglary, and aggravated assault) in three separate cases. Id. at 866. He

was sentenced to concurrent three-year prison terms on all the offenses,

followed by concurrent terms of probation. Id. He also received three years

of probation for the robbery and aggravated battery offenses (the second-

degree felonies), and two years of probation for the criminal mischief,

attempted burglary, and aggravated assault offenses (the third-degree

felonies). Id. After the defendant completed his prison sentence and his

two-year probation terms for the third-degree felonies, he was charged

with violating his probation. Id. At sentencing following the violation of

probation (“VOP”) hearing, the court used a scoresheet that classified his

third-degree felonies as “additional offenses.” Id. The defendant argued

first to the trial court, and then to the Second District on appeal, that the

trial court erred in scoring his third-degree felonies as additional offenses

on the scoresheet because he had completed his two-year probation term.

Id. at 866-67. Both courts rejected his argument. Id.

However, the Florida Supreme Court agreed with the defendant and

reversed and remanded his case for resentencing. Id. at 872. The Court

quoted the definitions of “additional offenses,” “primary offense,” and

“prior record” from section 921.0021. Id. at 868. Even though the

sentencing proceeding at issue took place after the defendant’s probation

was revoked at the VOP hearing, the Court stated that section 921.0021

did not “differentiate original sentencing proceedings, sentencing

proceedings upon revocation of probation, and resentencing proceedings”

and did not “include any exceptions to the statutory definitions for

sentencing proceedings upon revocation of probation.” Id. at 869.

Because the defendant completed his sentence for the third-degree

felonies, the Court concluded that those offenses were not “pending before

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the court for sentencing” and should not have been scored as “additional

offenses.” Id.

Under the guidance provided by Sanders, we find that the trial court

erred in listing Brown’s 2014 convictions as “additional offenses” in his

scoresheet at resentencing. Brown completed his sentence for those

convictions when the trial court sentenced him to time served at the 2018

sentencing proceeding. Once the trial court imposed this sentence, it no

longer had jurisdiction over the 2014 convictions. See Sneed v. State, 749

So. 2d 545, 546 (Fla. 4th DCA 2000) (stating that “where a sentence has

already been served, even if it is an illegal sentence, the court lacks

jurisdiction”). Thus, at the resentencing hearing, Brown’s 2014

convictions were no longer “pending before the court” and should not have

been listed as “additional offenses,” but instead as a part of his “prior

record.” See Sanders, 35 So. 3d at 869. Because this error significantly

altered the lowest permissible sentence and the record does not show that

the trial court would have imposed the same sentence using a corrected

scoresheet, the error cannot be deemed harmless. See Brooks v. State,

969 So. 2d 238, 241 (Fla. 2007) (stating that a scoresheet error is only

harmless if “the record conclusively shows that the trial court would have

imposed the same sentence using a correct scoresheet”); see also Brown,

289 So. 3d at 938 (same).

The State argues that our opinion in Reaves v. State, 45 Fla. L. Weekly

D1615 (Fla. 4th DCA July 8, 2020), compels a different result. It does not.

In that case, the defendant was convicted of robbery and burglary and was

sentenced to prison terms followed by ten years of probation for both

counts. See Reaves, 45 Fla. L. Weekly D1615. at *1. After the defendant’s

sentence was declared illegal under State v. Williams, 186 So. 3d 989 (Fla.

2016), the trial court resentenced him on the burglary charge. Id. The

defendant’s scoresheet at resentencing listed the robbery charge as the

“primary offense” and the burglary charge as the “additional offense.” Id.

Subsequently, the defendant appealed his resentencing, arguing that the

robbery charge should not have been listed as the primary offense because

it was not before the court at the resentencing. We rejected that argument

because the defendant “was still serving his sentence for the robbery, so

the trial court would still have had jurisdiction to consider postconviction

motions directed at that sentence.” Id. at *2. In contrast, at the time of

resentencing in this case, the trial court no longer had jurisdiction over

Brown’s 2014 convictions because he had already completed his sentence

for those offenses.

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Accordingly, we reverse Brown’s sentence and remand for resentencing

with a scoresheet that lists Brown’s 2014 convictions as a part of his “prior

record.”

Affirmed in part, reversed in part and remanded with instructions.

LEVINE, C.J., CONNER and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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