Summary
stating that scoresheet error was preserved for review by rule 3.800(b) motion
Summary of this case from Shorter v. StateOpinion
No. 2D07-5520.
March 11, 2009.
Appeal from the Circuit Court for Polk County; Steven L. Selph, Judge.
James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
Larry David Harper appeals the imposition of a 33.4-month sentence following his no contest plea to charges of criminal mischief, felony petit theft, and burglary of a structure. He claims that the scoresheet erroneously included 3.1 points for two additional offenses that the State dropped as part of the plea agreement. The State concedes that the scoresheet is incorrect. Mr. Harper preserved this issue for appeal by filing a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct a sentencing error. See Fla.R.App.P. 9.140(b)(2)(A)(ii)(d); Jackson v. State, 983 So.2d 562, 572 (Fla. 2008) (noting that scoresheet error is sentencing error properly preserved through a rule 3.800(b) motion); State v. Anderson, 905 So.2d 111, 118 (Fla. 2005) (same).
Because the trial court did not rule on Mr. Harper's motion within sixty days of filing, the motion is deemed denied. See Henson v. State, 977 So.2d 736, 739 (Fla. 2d DCA 2008).
We reverse and remand for resentencing.
CASANUEVA and DAVIS, JJ., Concur.