JOHNSON v. STATE (2002)

District Court of Appeal of Florida,Fifth District.

Sylvester JOHNSON, Appellant, v. STATE of Florida, Appellee.

No. 5D02-1536.

Decided: August 30, 2002

Sylvester Johnson, Bowling Green, pro se. Robert A. Butterworth, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.

Sylvester Johnson appeals the denial of his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). He contends that when he was resentenced on January 24, 1996, pursuant to our remand in Johnson v. State, 664 So.2d 36 (Fla. 5th DCA 1995), the scoresheet used to sentence him for attempted first degree murder with a deadly weapon erroneously included as additional offenses the two crimes for which he received habitual felony offender sentences. Including the two additional offenses increased the total of his scoresheet and placed him within a higher guideline range. We agree that the inclusion of the two additional offenses was improper. Therefore, we vacate the order denying his motion and remand for re-sentencing upon the primary offense only, the conviction for attempted first degree murder. See Frazier v. State, 762 So.2d 575 (Fla. 4th DCA 2000).

ORDER VACATED; REMANDED.

PER CURIAM.

THOMPSON, C.J., COBB and PETERSON, JJ., concur.

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