Summary
holding that trial court should not have stricken eighteen sentencing points and certifying conflict with Galloway
Summary of this case from White v. StateOpinion
Case No. 97-00862.
Opinion filed October 17, 1997.
Appeal from the Circuit Court for Polk County; E. Randolph Bentley, Judge.
Robert A. Butterworth, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellant.
James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
The state appeals the trial court order striking eighteen points from appellee's scoresheet for possession of a firearm pursuant to Florida Rule of Criminal Procedure 3.702(d)(1). Although we conclude that the eighteen points should not have been stricken under State v. Davidson, 666 So.2d 941 (Fla. 2d DCA 1995), and White v. State, 689 So.2d 371 (Fla. 2d DCA 1997), review granted, 696 So.2d 343 (Fla. 1997), since the addition of the points does not affect appellee's sentence, we affirm the order placing him on three years' probation. We remand this case, however, with directions to the trial court to correct the scoresheet by adding the disputed eighteen points pursuant to our holding in Davidson, 666 So.2d 941, and White, 689 So.2d 371. Because it might become necessary to use the scoresheet in the future, it is important that it be correct, and therefore, the lack of effect on appellee's present sentence does not render the error immaterial. We also certify conflict with Galloway v. State, 680 So.2d 616 (Fla. 4th DCA 1996), as was done in White, 689 So.2d 371.
DANAHY, A.C.J., and LAZZARA, J., Concur.