Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT RONALD HARTSHORN, IV, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D22-2016 May 19, 2023 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Pasco County; Kimberly Campbell, Judge. Ronald Hartshorn, IV, pro se. NORTHCUTT, Judge. Ronald Hartshorn, IV, appeals the summary denial of his motion for postconviction relief on remand from this court's decision in Hartshorn v. State, 333 So. 3d 344, 345 (Fla. 2d DCA 2022), wherein we directed the postconviction court to treat the motion as one filed under Florida Rule of Criminal Procedure 3.850. We reverse for two reasons. First, the postconviction court did not attach records to its order conclusively refuting Hartshorn's claim that he did not receive the sentence to which he pleaded because he and the State were misinformed about the correct minimum permissible sentence. Second, Hartshorn's motion should have been stricken with leave to amend because it was facially insufficient under rule 3.850 for failing to seek to withdraw his plea. Hartshorn's plea colloquy in this case was meant to resolve his charges for burglary of a structure and grand theft. When discussing Hartshorn's negotiated plea, the court initially used a scoresheet based on charges that had since been amended. The transcript of that hearing shows that Hartshorn himself brought the error to the court's attention. He said he had "no problem signing the bottom of [his] guidelines," but that the scoresheet should no longer reflect a 75-month minimum sentence that was based on the prior information. The State agreed: THE STATE: Judge, he scores 63.9 months, at the bottom. I fixed the scoresheet for the amended Information. So his sentence would be 63.9 today, if he were to accept it with the liens of restitution. THE DEFENDANT: Yes. THE COURT: So it's 63.9 months rather than 75? THE STATE: Correct. The bottom of his guidelines is now 63.9, so I would offer a 64-month sentence today. THE DEFENDANT: Yes. With this new understanding, Hartshorn pleaded guilty, and the lower court sentenced him to concurrent prison terms of 60 months for grand theft and 64 months for burglary. Within a year, Hartshorn filed a sworn motion for postconviction relief styled as one pursuant to Florida Rule of Criminal Procedure 3.800(a). In that motion, Hartshorn alleged that the scoresheet was still significantly incorrect. He explained that on the revised scoresheet, the State had incorrectly scored two of his prior convictions as Level 6 offenses rather than Level 1; thus, his sentencing scoresheet should have reflected a minimum prison sentence of 51.15 months rather than 63.9 2 months. Hartshorn alleged that his plea deal was for the lowest permissible sentence, and therefore his 64-month sentence was incorrect. The State acknowledged that Hartshorn's calculations were correct. It submitted a revised scoresheet reflecting a minimum permissible sentence of 51.15 months. But the State maintained that Hartshorn should not be resentenced because his plea agreement was for a term of 64 months, not for a sentence equal to the minimum permissible sentence. The postconviction court summarily denied Hartshorn's motion. On appeal, this court reversed for the postconviction court to treat the motion as one filed under rule 3.850. On remand, the postconviction court summarily denied the motion once more. It declared that the scoresheet reflecting a 63.9-month minimum sentence was correct, rejecting the State's concession and revised scoresheet. The order did not address the State's alternative argument. Again, Hartshorn has appealed. On the merits, the record does not conclusively refute Hartshorn's allegation that the State incorrectly scored his two prior convictions for felony battery in case number 2016-CF-9905. The attachments to Hartshorn's motion reflected that those convictions were for violations of section 784.03(2), Florida Statutes (2016), described as "prior convic [sic] battery commit 2nd [sic] sub battery."1 The offense severity chart set forth in section 921.0022(3), Florida Statutes (2016) does not assign a severity level to battery offenses charged under section 784.03(2), as 1 Section 784.03(2), Florida Statutes (2016), provides that "[a] person who has one prior conviction for battery, aggravated battery, or felony battery and commits any second or subsequent battery commits a felony of the third degree." 3 Hartshorn's prior charges were.2 Therefore, Hartshorn's priors fall under the criminal punishment code's catch-all provision for third-degree felonies for which the legislature has not specified a severity level, i.e., level 1. See § 921.0023(1), Fla. Stat. (2016). As such, they properly are assigned only .5 points each under Florida Rule of Criminal Procedure 3.992(a), rather than the nine points attributed to them on the scoresheet the postconviction court used. See In re Amendments to Florida Rule of Criminal Procedure 3.992—Criminal Punishment Code Scoresheets, 147 So. 3d 515, 516 (Fla. 2014). Obviously, then, the postconviction court's continued reliance on the original scoresheet was error. The record on appeal does not show that this error was harmless. See Brooks v. State, 969 So. 2d 238, 238 (Fla. 2007) (holding that "the would-have-been-imposed test" applies to scoresheet error claims under rule 3.850 and requires resentencing "unless the record conclusively shows that the same sentence would have been imposed using a correct scoresheet" (citing State v. Anderson, 905 So. 2d 111, 112 (Fla. 2005))). Rather, the sentencing hearing transcript quoted above demonstrates that Hartshorn and the State premised their negotiations on whatever the lowest permissible sentence was. The record does not show that the State would have offered, or that Hartshorn would have accepted, the 2 The postconviction court posited that section 921.0022(3)(f), Florida Statutes (2016), assigns a severity level to "felony battery," and so that subsection must apply to Hartshorn's prior charges which were elevated to third-degree felonies by virtue of his prior battery convictions. But that subsection's plain language applies only to felony battery as defined under section 784.041, Florida Statutes (2016), requiring "great bodily harm, permanent disability, or permanent disfigurement" or "domestic battery by strangulation." Section 784.041 is an entirely different statute codifying different offenses than Hartshorn's prior violations of section 784.03(2), so section 921.0022(3)(f) does not apply. 4 same sentence had either known that the lowest permissible sentence was nearly thirteen months lower than represented by the erroneous scoresheet. For these reasons, we cannot affirm the postconviction court's order on appeal. However, Hartshorn's motion did not affirmatively ask to withdraw his plea, rendering it facially insufficient as a motion to withdraw plea under rule 3.850. In this situation, Hartshorn was entitled to have his claim stricken with leave to amend, rather than denied on its merits. See Costello v. State, 330 So. 3d 1052, 1053 (Fla. 2d DCA 2021) (defendant's claim that his plea was involuntary based on affirmative misadvice regarding the lowest permissible sentence, but demanding his sentence be modified, warranted the motion being stricken as facially insufficient with leave to amend to include a request to withdraw the plea) (citing Agent v. State, 19 So. 3d 1114, 1115 (Fla. 2d DCA 2009))). Therefore, we reverse the postconviction court's order and remand with directions to strike Hartshorn's motion with leave to amend. See Fla. R. Crim. P. 3.850(f)(2). If Hartshorn amends his motion and seeks to withdraw his plea, the postconviction court shall either attach those portions of the record that conclusively refute the claim or hold an evidentiary hearing. We note that if Hartshorn is ultimately successful in having his plea agreement set aside, he will, in the absence of a new plea agreement, be exposed to any legal sentence that could be imposed upon conviction of the charges. Reversed and remanded. VILLANTI and LUCAS, JJ., Concur. 5 Opinion subject to revision prior to official publication. 6