Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CEDRIC ARMSTRONG, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D23-110 May 10, 2023 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Manatee County; Frederick P. Mercurio, Judge. Cedric Armstrong, pro se. PER CURIAM. Cedric Armstrong appeals from the order summarily denying his motion filed under Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for the postconviction court to address the claim of scoresheet error raised in point five of Mr. Armstrong's motion; we affirm the order in all other respects. The summary record reflects that on March 16, 2020, Mr. Armstrong entered a plea to possession of cocaine in case number 2019- CF-4008. On April 30, 2020, the trial court sentenced him to one year and one day of community control. On November 20, 2020, the trial court revoked his community control, as well as his probation imposed for convictions in two 2017 cases. The court sentenced him to 42.675 months in prison, the lowest permissible sentence pursuant to Mr. Armstrong's Criminal Punishment Code scoresheet. Mr. Armstrong filed his rule 3.800(a) motion on January 20, 2022. In the handwritten points four and five, he raised two claims of scoresheet error.1 The postconviction court correctly ruled that the first allegation of scoresheet error lacks merit, but it did not address the second claim of scoresheet error. Mr. Armstrong alleged in the third sentence of point five that the scoresheet prepared for his sentencing upon violation of his community control improperly listed his conviction for possession of diazepam in case number 2017-CF-1564 as an additional offense before the court for sentencing. He alleged that the trial court had previously sentenced him to time served for that conviction, so it should have been scored in the "prior record" section of the scoresheet. Mr. Armstrong further alleged that but for the scoresheet errors, he would have received a shorter sentence. He attached to his motion a postconviction order and scoresheets that tend to support this claim. Mr. Armstrong filed his rule 3.800(a) motion within the time afforded by rule 3.850(b), and the motion contains an oath that meets the requirements of rule 3.850(c) and (n). In Brooks v. State, 969 So. 2d 238, 243 n.8 (Fla. 2007), the supreme court directed that when a claim 1 Mr. Armstrong raised three additional claims. Two are not cognizable in motions filed under rule 3.800(a) or rule 3.850, and the third, which appears to challenge the trial court's jurisdiction, is conclusively refuted by the record attachments. 2 of scoresheet error is raised in a rule 3.800(a) motion that would be timely under rule 3.850(b), "for purposes of determining harmless error, the court should treat a motion alleging scoresheet error as one filed under rule 3.850 and apply the would-have-been-imposed standard." Accordingly, on remand, the postconviction court shall determine whether the assessment of 2.4 points for the conviction for possession of diazepam was error and, if so, whether "the record conclusively shows that the trial court would have imposed the same sentence using a correct scoresheet." Id. at 241. Reversed and remanded. SILBERMAN, SLEET, and LABRIT, JJ., Concur. Opinion subject to revision prior to official publication. 3