JOSEPH v. STATE (2020)

Sylvester Joseph appeals the denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a).

The issue in this case is whether Joseph's claim required utilization of the “could-have-been-imposed” test, as opposed to the “would-have-been-imposed” test, regarding an entitlement to resentencing with a corrected scoresheet. We find that the trial court did not err in utilizing the could-have-been-imposed test. Accordingly, we affirm.

Joseph was charged in two separate cases.¹ In the first case, he was charged with burglary of a conveyance while armed and grand theft; in the second case, with burglary of a conveyance and grand theft. Joseph proceeded to trial in the first case and was found guilty as charged. He was sentenced to life in prison as a prison releasee reoffender on the burglary while armed count, and to five years’ incarceration on the grand theft count.

At the sentencing hearing for the first case, Joseph entered an open plea to the charges in the second case. His convictions from the first case were scored as prior convictions on his sentencing guideline scoresheet; he was sentenced to five years’ incarceration on both charges, which was the statutory maximum. The five-year sentences were to run concurrent with each other but consecutive to the sentence from the first case.

Joseph filed a direct appeal in the first case. On appeal, this Court reversed the convictions and remanded for discharge, finding insufficient evidence of guilt. Joseph v. State, 275 So. 3d 1266 (Fla. 5th DCA 2019). Pursuant to the mandate, the trial court vacated the judgments and sentences in that case.

Subsequently, Joseph filed his rule 3.800(a) motion in the second case, challenging the scoresheet and resulting sentence.² He argued that because his convictions in the first case were vacated, his sentencing scoresheet in the second case improperly reflected those convictions as prior convictions. Relying on this Court's decision in Termitus v. State, 279 So. 3d 324 (Fla. 5th DCA 2019), Joseph asserted that he was entitled to resentencing with a corrected scoresheet based on application of the would-have-been-imposed test. He argued that inclusion of the vacated prior convictions resulted in his scoresheet reflecting 85.9 points with the lowest permissible sentence being 43.425 months, and without the vacated convictions, his scoresheet reflected 80.8 months with the lowest permissible sentence of 39.6 months. However, it was undisputed that the maximum permissible sentences would remain the same under either calculation.

The trial court rejected Joseph's position. Relying on Brooks v. State, 969 So. 2d 238 (Fla. 2007), it found that since the same sentence could have been imposed against Joseph, any error in the scoresheet was harmless. The trial court distinguished Termitus by highlighting the procedural differences between the two cases. Specifically, it noted that Termitus’ vacated conviction occurred within the same case, whereas in this case, Joseph's vacated convictions occurred in a separate case. Thus, it found that Joseph's sentences were legal and denied his 3.800(a) motion to correct sentence. This appeal followed.

Initially, we note that there are two applicable standards of harmless error related to scoresheet errors, would-have-been-imposed versus could-have-been-imposed. See Brooks, 969 So. 2d at 238. “The stricter ‘could-have-been-imposed’ standard does not require resentencing if the sentence legally could have been imposed (absent a departure) using a correct scoresheet. The more defendant-friendly ‘would-have-been-imposed’ standard requires resentencing unless the record conclusively shows that the same sentence would have been imposed using a correct scoresheet.” Id. (citing State v. Anderson, 905 So. 2d 111, 112 (Fla. 2005)). The Florida Supreme Court in Brooks, 969 So. 2d at 243–44, found that the could-have-been-imposed standard applies to scoresheet errors raised in a rule 3.800(a) motion. It recognized that the standard was much harder for a defendant to meet but was warranted because such a motion may be filed at any time. Brooks, 969 So. 2d at 242–43.

Subsequent to Brooks, in addressing a rule 3.800(a) appeal, this Court noted that “[i]n general, when the vacation of a conviction would result in changes to the defendant's scoresheet, the defendant is entitled to be resentenced using a corrected scoresheet[,]” and applied the would-have-been-imposed standard. Pierce v. State, 281 So. 3d 569, 571 (Fla. 5th DCA 2019) (citations omitted). We explained that the could-have-been-imposed standard “is inapplicable when a defendant seeks resentencing after a vacated conviction.” Id. (citing Cox v. State, 192 So. 3d 581, 582 (Fla. 4th DCA 2016)). However, in Pierce, the defendant's vacated conviction occurred within the same case, such that the vacated conviction became part of the postconviction record. Id. The same situation occurred in Termitus, 279 So. 3d at 326–27. As such, the records on their face demonstrated an entitlement to resentencing. See Pierce, 281 So. 3d at 571; Termitus, 279 So. 3d at 326; see also Fla. R. Crim. P. 3.800(a)(1).

The critical distinction in this case, in contrast to Pierce and Termitus, is that Joseph's vacated convictions occurred in a separate case and did not become part of the same postconviction record. Thus, there is no error on the face of the record demonstrating an entitlement to resentencing. See Fla. R. Crim. P. 3.800(a)(1). As a result, we find that the trial court did not err in applying the could-have-been-imposed standard and thereby denying Joseph's rule 3.800(a) motion. His sentences were within the statutory parameters had a corrected scoresheet been used, and application of that standard was consistent with Brooks and not inconsistent with Termitus and Pierce.

AFFIRMED.

FOOTNOTES

1.   Case no. 2017-CF-0027 and case no. 2017-CF-0028, respectively.

2.   No direct appeal was taken in the second case, the one now before us.

COHEN, J.

EDWARDS and HARRIS, JJ., concur.