Summary
holding that because a sentence could not have been imposed absent a departure, a defendant who filed a 3.800 motion alleging scoresheet error is entitled to relief
Summary of this case from Holton v. StateOpinion
No. 1D08-0638.
September 23, 2008.
Appeal from the Circuit Court, Duval County, Hugh A. Carithers, J.
Glenn Jeffery Goings, pro se, Appellant.
Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.
The appellant challenges the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The appellant claims his sentencing scoresheet improperly assessed eighteen points for use of a firearm, when his sentence was already enhanced to include a three-year minimum mandatory for use of a firearm. Section 921.0014(1), Florida Statutes (1995) provides, in pertinent part, "If the offender is convicted of committing or attempting to commit any felony other than those enumerated in s. 775.087(2) while having in his possession: a firearm as defined in s. 790.001(6), an additional 18 sentence points are assessed." Among the enumerated felonies section 775.087(2)(a), is the offense of "murder."
In the instant case, the appellant was convicted of second-degree murder. Therefore, the trial court erred in imposing the firearm points. See Bush v. State, 687 So.2d 312, 312 (Fla. 1st DCA.1997). The state concedes that 18 points were erroneously assessed. Furthermore, a corrected scoresheet only allows up to 21.6 years' imprisonment. Because the appellant's 23.5-year sentence could not have been imposed absent a departure, the appellant is entitled to relief. See Brooks v. State, 969 So.2d 238, 238 (Fla. 2007). Accordingly, we reverse the trial court's summary denial of the appellant's motion to correct an illegal sentence. On remand, should the trial court again determine that the appellant is not entitled to relief, it shall attach to its order those portions of the record conclusively demonstrating that; otherwise, it shall grant the motion.
REVERSED AND REMANDED, with directions.
BROWNING, C.J., and WOLF, J., concur; WEBSTER, J., concurs in result only.