268 So. 3d 792
Fla. Dist. Ct. App.2019Background
- Terry Moore was convicted of second-degree murder, sentenced to 6 years' prison followed by 5 years' probation.
- While on probation, an affidavit alleged he willfully and substantially violated probation by leaving the county without permission and committing criminal trespass in Leon County.
- At a violation hearing the trial court orally found Moore violated probation on both grounds and sentenced him to 279.45 months’ prison (the lowest permissible under the scoresheet) followed by 5 years’ probation.
- The written revocation order later entered by the trial court omitted the trespass violation the court had orally found.
- Moore challenged the scoresheet and VFOSC treatment, arguing the court failed to follow statutory procedures for designating a Violent Felony Offender of Special Concern (VFOSC); the State conceded a scoresheet arithmetic error and that resentencing was required but argued the VFOSC designation could be revisited on remand.
Issues
| Issue | Moore's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the sentence was based on an improper scoresheet | Scoresheet improperly assessed 12 points for a VFOSC and totaled points incorrectly; statutory VFOSC procedures not followed; merits resentencing and removal of VFOSC designation | Scoresheet contained a calculation error so resentencing is required, but court is not barred from designating Moore a VFOSC on remand | Court agreed scoresheet was incorrect and remanded for resentencing with corrected scoresheet; VFOSC designation is not foreclosed on remand |
| Whether trial court had to follow §948.06(8) procedures before imposing VFOSC points | VFOSC designation requires State request, oral pronouncement, danger hearing and written findings; absence of these invalidates VFOSC scoring | VFOSC status depends on statutory criteria (e.g., probation for enumerated offense like murder); failure to make §948.06(8) written findings affects mandatory/discretionary revocation but does not strip the VFOSC designation automatically | Court held Moore plainly qualifies as a VFOSC (murder is a qualifying offense) and failure to make §948.06(8) findings requires the court to make them on resentencing but does not bar VFOSC scoring |
| Whether written revocation order must match oral pronouncement | Written order omitted the trespass violation found orally; this mismatch is error | State agreed the written order did not conform to the oral pronouncement and should be corrected | Court directed vacatur of the written revocation order and entry of a new written order conforming to the oral pronouncement |
| Whether lack of remorse consideration or discovery violation prejudiced rights | Moore argued sentencing consideration of remorse and discovery issues were improper | State defended both; appellate court found no reversible error on those points | Court affirmed the trial court on discovery and remorse issues without extended discussion |
Key Cases Cited
- Peters v. State, 128 So. 3d 832 (Fla. 4th DCA 2013) (defendant injects rehabilitation/remorse into case by arguing rehabilitation)
- Somps v. State, 183 So. 3d 1090 (Fla. 4th DCA 2015) (scoresheet legal questions reviewed de novo)
- Arnone v. State, 204 So. 3d 556 (Fla. 4th DCA 2016) (preservation of VFOSC challenges via rule 3.800(b)(2) motion)
- State v. Anderson, 905 So. 2d 111 (Fla. 2005) (would-have-been-imposed test for scoresheet error requiring remand)
- Whittaker v. State, 223 So. 3d 270 (Fla. 4th DCA 2017) (VFOSC designation does not depend on §948.06(8) danger finding; remedy is remand for required written findings)
- Barber v. State, 207 So. 3d 379 (Fla. 5th DCA 2016) (guidance that failure to make §948.06(8) findings requires remand rather than reinstatement of probation)
- Hernandez v. State, 254 So. 3d 1091 (Fla. 3d DCA 2018) (written revocation order must conform to oral pronouncement)