In Anderson v. State, 865 So. 2d 640, 642 (Fla. 2d DCA 2004), the defendant pled no contest to second-degree attempted murder. Anderson, 865 So. 2d at 641.
He was sentenced to a downward departure of two years' community control followed by five years' probation.
He was later found guilty of violating his probation, and the court sentenced him to ninety months in prison. Id.
Anderson did not appeal, but did file a motion for reconsideration of the sentence under Florida Rule of Criminal Procedure 3.800(c), which was denied.
After his conviction was final, Anderson filed a timely pro se motion under rule 3.850, alleging, among other things, that the trial court erred in scoring his sentencing guidelines scoresheet.
The circuit court agreed, finding that it had used the wrong offense level on the scoresheet.
The scoresheet erroneously placed his offense level at 9 instead of 8.
This error resulted in 137 total sentence points and a sentencing range of 81.75 to 136.25 months.
The court's sentence of 90 months was at the low end of that (erroneous) range.
A correct scoresheet would have reflected 120 sentencing points and a sentencing range of 69 to 115 months.
The court's sentence would have been in the middle of that (correct) range. Id. at 641-42.
Under a would-have-been-imposed test, the court would determine whether it would have imposed a sentence of 90 months had it known that the sentence would lie in the middle, not the low, end of the range. Citing Hummel─the conflict case─however, the trial court denied the motion, finding that Anderson was not "adversely affected" by the error because his sentence fell within the corrected range. Id. at 642.
On appeal, the Second District agreed that Anderson's crime was incorrectly scored, but disagreed with the standard the court applied. Id.
The Second District cited to its own precedent and stated that:
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. Id.