ESPINAL v. STATE (2002)

District Court of Appeal of Florida,Fifth District.

Elvis ESPINAL, Appellant, v. STATE of Florida, Appellee.

No. 5D00-2051.

Decided: May 03, 2002

James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.

Elvis Espinal appeals his judgment and sentence for the crimes of burglary of a dwelling with an assault or battery, battery, violation of a domestic violence injunction by going to a frequented location, violation of a domestic violence injunction by communication or contacting, and interference with custody.

Espinal raises seven issues, only one of which has merit. Espinal was sentenced using a criminal punishment code scoresheet effective for crimes occurring on or after 1 October 1998. The criminal punishment code was not applicable to him because his crime occurred on 11 June 1998. Although appellate counsel filed a Florida Rule of Criminal Procedure 3.800(b) motion to correct this error, the trial court did not rule on the motion. By operation of Rule 3.800(b)(1)(B) and (b)(2)(B), the motion is considered denied if the trial court does not rule on the motion within sixty (60) days. We vacate the sentence and remand for resentencing using the correct scoresheet. See Taylor v. State, 752 So.2d 85 (Fla. 1st DCA 2000).

Judgment AFFIRMED; sentence VACATED for resentencing.

THOMPSON, C.J.

SHARP, W. and SAWAYA, JJ., concur.

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