Opinion
No. 93-3604.
June 7, 1995. Rehearing Denied August 10, 1995.
Appeal from the Circuit Court, Broward County, Charles M. Greene, J.
Richard L. Jorandby, Public Defender, and Tanja Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Joan L. Greenberg, Asst. Atty. Gen., West Palm Beach, for appellee.
By one view of the facts at trial and the showing made at the hearings on the motion for new trial on newly discovered evidence, this case may appear to involve a wrongfully convicted, innocent man. But the trial judge did not think so. Because there is record evidence from which he could have properly concluded that the newly discovered evidence is not sufficiently reliable and authentic, we are unable to disturb his decision denying a new trial.
We do agree with defendant that an error in the sentencing guideline scoresheet requires resentencing. His conviction for attempted second degree murder with a firearm was scored as a life felony, but it should have been scored as first degree felony. Harris v. State, 650 So.2d 639 (Fla. 4th DCA 1995); §§ 775.087(1)(b), 777.04(4)(c), and 782.04(2), Fla. Stat. (1993). The difference in points may have affected the outcome. We therefore remand for resentencing upon a properly calculated guidelines scoresheet.
CONVICTION AFFIRMED; SENTENCE REVERSED AND REMANDED FOR RESENTENCING WITH PROPER SCORESHEET.
GUNTHER and STONE, JJ., concur.