Anderson v. StateAnderson v. State
Jerry D. Anderson appeals the summary denial of his motion filed pursuant to
Anderson makes claims based on ineffective assistance of counsel and an error in the sentencing guidelines scoresheet used in his sentencing. We conclude that the trial court‘s summary denial of Anderson‘s ineffective-assistance-of-counsel claims should be affirmed and will not further address those claims. We conclude, however, that the summary denial of Anderson‘s scoresheet-error claim should be reversed.
In April 1997, Anderson was charged by information with attempted murder in the second degree—a violation of
The sentencing court utilized a
The scoresheet error alleged by Anderson relates tо the scoring of the primary offense level. For reasons that are not discernable from the record before us, the offense of attempted murder in the second degree charged against Anderson was scored as a level 9 offense (91 points). As the postconviction court recognized, this scoring of the primary offense level was an error which resulted in an increase
The scoring of an inchоate crime—such as attempted second-degree murder—is based on the offense level that would have been applicable had the crime been completed. Under the applicаble statutes, second-degree murder was a level 10 offense and attempted second-degree murder should have been scored at two offense levels below the completed crime. See
The postconviction trial court concluded that Anderson “was not adversely affected” by thе scoresheet error because the ninety-month sentence previously imposed “is within the corrected range.” In reaching the conclusion that Anderson was not entitled to relief, the postconviction court relied on Heggs v. State, 759 So.2d 620 (Fla.2000), and Hummel v. State, 782 So.2d 450 (Fla. 1st DCA 2001). In Heggs, which invalidated the statute adopting the 1995 sentencing guidelines, the supreme court held that “if a person‘s sentence imposed under the 1995 guidelines could have been imposed under thе 1994 guidelines (without a departure), then that person shall not be entitled to relief under our decision here.” 759 So.2d at 627. In Hummel, the First District stated that the supreme court had in Heggs “announced a new harmless error analysis to be applied in dealing with scoresheet inaccuracies.” 782 So.2d at 451. The First District thus concluded that the Heggs standard for determining whether a defendant is entitled to relief is generally applicable to claims based on scoresheet errors and not limited to errors arising from the use of the invalid 1994 guidelinеs.
This court has, however, not understood Heggs as establishing such a generally applicable standard for determining whether scoresheet errors require resentencing. On the contrary, in Voss v. State, 808 So.2d 282 (Fla. 2d DCA 2002), Collins v. State, 788 So.2d 1109 (Fla. 2d DCA 2001), and Bigham v. State, 761 So.2d 431 (Fla. 2d DCA 2000)—which were decided after Heggs—we have adhered to the view that a scoresheet error, like the error shown by Anderson, requires resentencing unless it can be shown conclusively that the same sentence would have been imposed if the corrected scoresheet had been used by the sentencing court. See also Sprankle v. State, 662 So.2d 736, 737 (Fla. 2d DCA 1995) (holding that scoresheet error was basis for relief under motion to correct illegal sentence even where sentence imposed using incorrect scoresheet was “still within the permittеd range of punishment” under the correct scoresheet and stating that “[w]hen a corrected scoresheet places the defendant in a different cell, the error cannot be presumed to be harmless, unless the record conclusively demonstrates that the trial court would have given the same sentence had it known the correct score“).
In sum, we employ the would-have-been-imposed standаrd for determining whether scoresheet errors require resentencing, while the First District under Hummel uses the could-have-been-imposed standard adopted from Heggs. Anderson would not be entitled to relief under the could-have-been-imposed standard articulated in Hummel. But he is entitled to relief under the would-have-been-imposed standard utilized in this district because
We recognize that the sentencing transcript or other record documents may conclusively demonstrate that the sentence imposed was not affected by the scоresheet error. If the trial court determines on remand that the record conclusively refutes Anderson‘s claim, it will be necessary for the trial court to enter a new order denying relief and to attach tо the order the portions of the sentencing transcript or other record documents that conclusively show that Anderson is not entitled to relief. Otherwise, Anderson must be resentenced using a corrected scoresheet.
We acknowledge that our decisions in Voss, Collins, and Bigham are inconsistent with the First District‘s decision in Hummel, and therefore certify direct conflict pursuant to
Reversed and remanded with instructions; conflict certified.
DAVIS, J., Concurs.
ALTENBERND, C.J., Concurs with opinion.
ALTENBERND, Chief Judge, Concurring.
I fully concur in this opinion; however, I am not convinced that the standard currently utilized by either the First District or the Second District to determine thе harmfulness of a scoresheet error is the optimal standard. I believe there is a middle ground that would be a better standard to determine whether a scoresheet error warrants resentencing. This issue is important because it affects virtually all scoresheet errors for offenses committed after 1993.
In the era when scoresheets had cells, a scoresheet error was treated as harmless error if the error was insufficient to move the sentence from one cell to another. See Sellers v. State, 578 So.2d 339 (Fla. 1st DCA 1991); see also
In 1994, the law changed and cells were replaced by a sentencing system that permitted the trial court to adjust a sentence upward or downward twenty-five percent from a term of months established by the scoresheet. Thus, the scoresheet created one broad cell for use in most cases. Under this system, a one-point error entitles a prisoner to relief if he or she received the maximum permissible sentence. Alternatively, depending upon the test used to determine harmfulness, a large error can entitle a prisoner to no relief if he or she received a sentence in the middle or lower portion of the range.
In 1998, the law changed again. Under the new Criminal Punishment Code, if a sentence of imprisonment is authorized, the maximum sentenсe is never less than the statutory maximum and the scoresheet determines the lowest permissible sentence in the absence of a reason for a downward departure sentence. See
If one relies on Heggs, 759 So.2d at 627, to determine the harmfulness of a scoresheet error, then under the 1994-95 law the error must often be very large before it is harmful. Under the Criminal Punishment Code, the sentence would have to exceed the statutory maximum before it was deemed harmful. In essence, the
On the other hand, this court‘s decisions in Voss, 808 So.2d at 282-83, Collins, 800 So.2d at 661, and Bigham, 841 So.2d at 645, arguably apply a DiGuilio standard in the context of a postconviction proceeding. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986). Those decisions prohibit the trial court from denying a postconviction motion unless the attachments show conclusively that the trial judge would have imposed the same sentence despite the error. On direct appeal, the State is required to prove that a preserved sentencing error was harmless beyond a reasonable doubt. See Johnson v. State, 855 So.2d 1157 (Fla. 4th DCA 2003). This is a reasonable standard on direct appeal. However, in the context of a postconviction motion, the defendant shоuld have a threshold burden to establish that an error was harmful.
The courts cannot impose a structure of cells upon the more recent sentencing systems. It seems to me, however, that we might establish a levеl of error at which the sentencing was presumptively harmful. In this case, for example, the midpoint of the range under the scoresheet used at sentencing was 109 months. The correct midpoint was ninety-two months. His sеntence was ninety months. The seventeen-point shift in the midpoint is an error of about fifteen percent on the first scoresheet. That is enough to convince me that it is probable that the trial judge would have imposed a lesser sentence had he used a correct scoresheet. I would suggest that any scoresheet error that reduced the midpoint of the scoresheet by ten percent or more should be treated as presumptively harmful with the burden placed on the State to establish that the error was harmless beyond a reasonable doubt. On the other hand, any error less than ten percent should be treated as presumptively harmless with the burden placed upon the defendant to establish that the error was actually harmful in his or her case.