Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JOSHUA AARON EDWARDS, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D2025-1211 September 9, 2026 Appeal from the Circuit Court for Sarasota County; Lon Arend, Judge. Blair Allen, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant. James Uthmeier, Attorney General, Tallahassee, and William A. Leto, Assistant Attorney General, Tampa, for Appellee. ROTHSTEIN-YOUAKIM, Judge. On this direct appeal of the revocation of his probation and the sentence thereafter imposed for the underlying convictions, Joshua Aaron Edwards argues that the trial court sentenced him pursuant to an incorrect scoresheet. Because we conclude that the State failed to carry its burden to establish either that certain remote prior convictions were correctly included in his prior record or that any error resulting from their incorrect inclusion was harmless, we reverse his sentence and remand for further proceedings. In all other respects, the order of revocation is affirmed. In circuit court case no. 2020-CF-8883, Edwards entered a plea of nolo contendere and was adjudicated guilty of possessing a controlled substance (counts one and four), drug paraphernalia (count two), and a firearm as a convicted felon (count three). The trial court sentenced him on counts one, three, and four to concurrent terms of six months' community control followed by thirty-six months' probation.1 In 2023, Edwards violated his community control by committing a new law violation—possessing drugs again—and the trial court revoked his community control. The court sentenced him to two years' drug offender probation both in case no. 2020-CF-8883 and for the new law violation in case no. 2023-CF-9846. In 2025, however, Edwards failed to comply with the terms of his drug offender probation. After he admitted the violation, the trial court revoked his probation in case no. 2020-CF-8883 and sentenced him on the two drug possession counts and the felon-in-possession count to concurrent terms of 42.75 months' imprisonment—the lowest permissible sentence, according to the scoresheet—followed by two years' drug offender probation on the felon-in-possession count. The scoresheet upon which the trial court relied identified Edwards's felon-in-possession conviction—a second-degree felony—as the primary offense. The scoresheet also included, in the prior record section, a number of offenses followed by unexplained parenthetical dates between 2003 and 2007. None of those prior offenses had been 1 The court also sentenced him to time served on count two, a first- degree misdemeanor. Because that sentence was fully served, it was not affected by the subsequent probation violations. 2 included in the scoresheet prepared for Edwards's original sentencing in 2020.2 Those offenses added a total of 11.8 sentencing points to Edwards's score. After filing his notice of appeal, Edwards filed a motion under Florida Rule of Criminal Procedure 3.800(b)(2), arguing that the newly listed prior offenses were too remote in time to be properly included. 3 The trial court denied the motion, apparently concluding that Edwards's 2023 felony conviction for the new law violation, which he committed after he committed the primary offense in 2020 but before he failed to comply with the terms of his drug offender probation in 2025, permitted the court to consider offenses that he committed more than ten years before he committed the primary offense. It is this conclusion that Edwards now challenges. "The interpretation of statutes and rules of criminal procedure present a legal question subject to a de novo standard of review." Brown v. State, 305 So. 3d 547, 549 (Fla. 4th DCA 2020) (citing Sanders v. State, 35 So. 3d 864, 868 (Fla. 2010). Before sentencing, every defendant in Florida receives a scoresheet "to determine the permissible range for the sentence that the court may impose." § 921.0024(3), Fla. Stat. (2025); see also Fla. R. Crim. P. 3.992. The scoresheet includes a "total offense score" based on the primary offense, any additional offenses before the court, and victim injury. See § 921.0024(1)(a). It also includes a "prior record score," which consists of all adult and juvenile 2 We note, however, that there is nothing inherently problematic about that. "[A] scoresheet may be recalculated during a sentencing upon revocation of probation to correct an omission from the original scoresheet." Sanders v. State, 35 So. 3d 864, 869 (Fla. 2010). 3 He also filed motions under rule 3.800(a) and 3.800(c), raising substantively the same argument in all three. 3 offenses previously committed by the defendant. See id.; see also § 921.0021(5). Section 921.0021(5) defines a prior record as follows: "Prior record" means a conviction for a crime committed by the offender, as an adult or a juvenile, prior to the time of the primary offense. . . . Convictions for offenses committed by the offender more than 10 years before the primary offense are not included in the offender's prior record if the offender has not been convicted of any other crime for a period of 10 consecutive years from the most recent date of release from confinement, supervision, or sanction, whichever is later, to the date of the primary offense. (Emphasis added.) By its plain language, therefore, the statute would not permit the trial court to consider, as part of Edwards's prior record, convictions for offenses that he committed more than ten years before the primary offense based on conviction for any other crime after the date of the primary offense. But that appears to be exactly what the trial court did. Although acknowledging that Edwards's primary offense was his possession of a firearm as a convicted felon, see § 921.0021(4) (defining "primary offense"), which he committed on August 4, 2020, the court reasoned: Where a court is sentencing a defendant for a violation of community control or probation, it is the violation of supervised release that is the "offense" then pending before the court. See 16 Fla. Prac., Sentencing § 5:12 (West 2024- 2025 ed.). While failing to comply with the terms of probation is not an independent criminal offense, see Shields v. State, 296 So. 3d 967, 971 (Fla. 2d DCA 2020), it is a violation of a court order. See Carwise v. State, 449 So. 2d 943, 943 (Fla. 5th DCA 1984). Such a violation permits the court to impose a more severe sentence on the original offense, so long as that sentence could have been imposed when the court originally sentenced the defendant. See Shields, 296 So. 3d at 971. The VOP Report alleged that Defendant failed to comply with the provisions of Drug Court, as of January 13, 2025. Looking back from that date, Defendant had accrued his new felony conviction in Case No. 2023-CF-9846, and other 4 misdemeanor convictions not then before the Court for sentencing. This allowed all of Defendant's prior criminal history to be reported as part of his prior record on his Scoresheet, unless there were offenses that were excludable for other reasons. (Emphasis added and footnotes omitted.) We are hard-pressed to understand the trial court's reasoning as anything other than effectively substituting Edwards's 2025 violation of his drug offender probation as his primary offense and then, because he was convicted of his new law violation less than ten years before that, concluding that all of those assertedly too-remote convictions were correctly scored. The State offers us no help in that regard. Rather than attempting to elucidate or defend the trial court's reasoning, it immediately pivots to a "tipsy coachman" basis for affirming, i.e., that Edwards's argument was facially insufficient because he failed to identify with court records the dates on which he was released from "confinement, supervision, or sanction" for those prior convictions. That would be all well and good if Edwards had only filed a rule 3.800(a) motion; the cases on which the State relies, Tyson v. State, 852 So. 2d 428, 429 (Fla. 2d DCA 2003), and McClain v. State, 157 So. 3d 528, 529 (Fla. 1st DCA 2015), both involve rule 3.800(a) motions. But he also filed a rule 3.800(b)(2) motion, and the trial court explicitly considered his argument in the context of rule 3.800(b)(2). Consequently, the burden was on the State to establish that the prior offenses were correctly included, not on Edwards to establish that they were not. See Murphy v. State, 273 So. 3d 1147, 1147 (Fla. 2d DCA 2019) ("When the defense challenges prior convictions and the accuracy of the scoresheet, the [S]tate has the burden of producing competent evidence of the disputed conviction." (alteration in original) (quoting DeGeso v. State, 771 So. 2d 1264, 1265 (Fla. 2d DCA 2000))); see also, 5 e.g., Sanders v. State, 333 So. 3d 235, 235–36 (Fla. 4th DCA 2022) ("Having challenged multiple prior convictions included on his scoresheet in his amended rule 3.800(b) motion, Appellant correctly argues that the State was required to introduce competent evidence in support of its scoring of Appellant's prior record and failed to do so."); Dresch v. State, 150 So. 3d 1199, 1200 (Fla. 4th DCA 2014) ("[W]e note that the State failed to come forward with any evidence that Defendant committed two of the prior crimes listed on his scoresheet. Defendant challenged the inclusion of these crimes, which added 0.4 to his score, in his rule 3.800(b)(1) motion. Once contested, the State was required to provide competent evidence that Defendant had committed these crimes."). Because the State failed to carry its burden, we have no choice but to conclude that those prior convictions were incorrectly included and scored. Moreover, we cannot conclude that the trial court's reliance on the incorrect scoresheet was harmless. The court imposed the lowest permissible sentence according to the scoresheet, and nothing in the record, including the court's order denying Edwards's motion, indicates that the court would have imposed that sentence regardless of any error in the scoresheet. See Sanders, 35 So. 3d at 870–71 ("When a scoresheet error is challenged on direct appeal, via a motion under Florida Rule of Criminal Procedure 3.800(b) . . . the error 'is harmless if the record conclusively shows that the trial court would have imposed the same sentence using a correct scoresheet.' " (quoting Brooks v. State, 969 So. 2d 238, 241 (Fla. 2007))). We therefore affirm the order revoking probation but reverse and remand for resentencing. Affirmed in part; reversed in part; remanded. 6 SLEET and ATKINSON, JJ., Concur. Opinion subject to revision prior to official publication. 7