Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-3575 _____________________________ STEPHEN PARKER BLACKWELL, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Escambia County. Jeffrey Burns, Judge. November 16, 2020 PER CURIAM. Appellant challenges the denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. He raises two issues on appeal; the second of which is affirmed without comment. In the first issue, Appellant argues the postconviction court erred in denying his motion to correct his sentence after an inaccurate scoresheet was used. We agree and reverse for resentencing using a correctly calculated scoresheet. In 2017, Appellant pleaded guilty for failure to report a change in address to the Department of Motor Vehicles as required by his sexual predator status. In exchange, the State agreed to cap Appellant’s sentence at sixty months. The sentencing guidelines scoresheet was incorrectly calculated in that it included Appellant’s 1995 convictions, which occurred more than ten years prior to the current offense. See Fla. R. Crim. P. 3.704(d)(14)(A). The prior convictions resulted in total sentence points of 132.3 and a lowest permissible sentence of 78.2 months. Regardless, the State agreed to cap Appellant’s sentence at 60 months but stated that it was unwilling to mitigate further. The trial court sentenced Appellant to 60 months with the Department of Corrections. Appellant originally filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). However, the motion was denied after the postconviction court found that Appellant failed to show that his sentence is one that could not have been imposed with a correct scoresheet. Thereafter, Appellant timely filed this 3.850 motion. When a motion is filed pursuant to rule 3.850 rather than rule 3.800, the would-have- been-imposed standard applies. State v. Anderson, 905 So. 2d 111, 118 (Fla. 2005). The would-have-been-imposed standard “requires an examination of the record for conclusive proof that the scoresheet error did not affect or contribute to the sentencing decision.” Id. at 115–16. In denying Appellant’s motion, the postconviction court noted that a scoresheet is unnecessary where all parties have agreed to a negotiated sentence. However, the cases relied upon are distinguishable because the sentences at issue were for specific sentences and not an agreement to cap a sentence. See Lawson v. State, 497 So. 2d 288, 289 (Fla. 1st DCA 1986); Grimes v. State, 499 So. 2d 42, 43 (Fla. 1st DCA 1986). Where the parties to a plea agreement consent to a capped sentence rather than a particular sentence, any error in the scoresheet requires reversal unless such error is deemed harmless. See Urquhart v. State, 967 So. 2d 397, 398 (Fla. 1st DCA 2007) (remanding for resentencing where plea agreement included an agreement to be sentenced according to the sentencing guidelines); Boyd v. State, 658 So. 2d 1115, 1117 (Fla. 3d DCA 1995) (remanding for resentencing due to an error in the sentencing scoresheet after the parties agreed to cap the defendant’s sentence as part of the plea agreement and agreed the defendant would be sentenced according to the sentencing guidelines). In the instant case, the parties agreed to a plea agreement wherein Appellant’s sentence was capped at 60 months; 2 thus, his sentence would be subject to the criminal punishment code. Notwithstanding the foregoing, the State argues the postconviction court did not err in denying Appellant’s motion because it correctly concluded the sentencing court would have given the same sentence using a corrected scoresheet. In reaching its conclusion, the postconviction court stated: Here, the parties all agreed to a plea agreement wherein the judge could sentence the Defendant to a maximum sentence of five (5) years in state prison. A review of the transcripts from the two sentencing hearings does not indicate this Court’s predecessor, Judge Duncan, made any promises that he would sentence the Defendant to any amount under the maximum of five (5) years. Moreover, Judge Duncan barely mentioned the scoresheet in his oral pronouncement, and instead indicated he relied upon other evidence to make his sentencing decision. Accordingly, there is no record evidence that indicates Judge Duncan would have sentenced the Defendant to a lesser sentence if Judge Duncan would have been presented with a corrected scoresheet. In doing so, the postconviction court misapplied the would-have- been-imposed standard. Here, the State concedes that Appellant’s scoresheet was miscalculated but argues that the record conclusively shows the trial court would have imposed the same sentence. We cannot agree. The sentencing court simply stated, “Okay. Well, I had the opportunity to review the case, review the scoresheet, review the letters. At this time, I’m going to adjudicate him guilty. I am going to sentence him to 60 months state prison . . . .” Such statements are insufficient to meet the would-have-been-imposed standard. See Henion v. State, 247 So. 3d 537, 538 (Fla. 4th DCA 2018) (holding the sentence scoresheet error harmless where the court stated it would sentence the defendant to eighteen months in prison followed by two years of community control prior to the 3 defendant entering his plea, and then after the defendant entered his plea, the court sentenced him accordingly). As such, we reverse the denial of Appellant’s postconviction motion and remand to the lower court with directions to resentence Appellant using a correctly calculated scoresheet. REVERSED and REMANDED. RAY, C.J., and M.K. THOMAS and NORDBY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Stephen Parker Blackwell, pro se, Appellant. Ashley Moody, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee. 4