FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit
Court for Highlands County; Anthony L. Ritenour, Judge.
Norgard and Graylin Corey Chastang, of Norgard, Norgard &
Chastang, Bartow, for Appellant.
Jo Bondi, Attorney General, Tallahassee, and Laurie
Benoit-Knox, Assistant Attorney General, Tampa, for Appellee.
Weeks appeals the order denying his amended motion for
postconviction relief filed under Florida Rule of Criminal
Procedure 3.800(a). Because the very limited,
twenty-three-page postconviction record does not conclusively
refute Mr. Weeks' claim that his sentences of life
imprisonment are illegal, we reverse and remand for the
postconviction court to reconsider the motion.
1988, Mr. Weeks entered negotiated pleas in three different
cases. In exchange for his pleas, the trial court sentenced
him to concurrent terms of forty years' imprisonment for
kidnapping and sexual battery with great force in case number
CF86-304; concurrent terms of forty years' and fifteen
years' imprisonment for burglary of a residence with an
assault and attempted sexual battery in case number CF86-305;
and concurrent terms of life probation for burglary of a
dwelling with an assault and while armed and sexual battery
with a deadly weapon in case number CF86-244. The sentences
in case numbers CF86-304 and CF86-305 ran concurrently, and
the sentences in case number 86CF-244 ran consecutively to
the sentences in case numbers CF86-304 and CF86-305.
Weeks asserted in his motion that in October 2007, he
admitted to violating his probation. At the sentencing
following the violation of probation hearing, the prosecutor
advised the trial court that the guidelines scoresheet
prepared for the November 2, 1988, sentencing erroneously
assessed 145 points for victim injury, assessing a total
score of 663. The prosecutor stated that the original
scoresheet was incorrect and that the victim injury points
should be reduced from 145 to 85, reducing the total score to
603. The trial court accepted the lower score and sentenced
Mr. Weeks to concurrent terms of life imprisonment.
Weeks further asserted that his guidelines scoresheet
improperly assessed 85 victim injury points for death or
serious injury pursuant to this court's decision in
Speights v. State, 102 So.3d 671 (Fla. 2d DCA 2012),
because serious injury or death are not essential elements of
the crimes of which he was convicted. Absent the erroneous
addition of the 85 points, Mr. Weeks asserted that the
scoresheet would reflect a score of 518 points, resulting in
a sentencing range of twenty-two to twenty-seven years'
imprisonment. Even with a one-cell bump that was permitted
without written reasons under Florida Rule of Criminal
Procedure 3.701(d)(14) because he violated his probation, Mr.
Weeks asserted the maximum sentence that the trial court
could have imposed was forty years.
postconviction court rejected Mr. Weeks' contention that
the 85 points were improperly assessed. It further found that
even assuming that the scoresheet improperly assessed 85
points so that the appropriate score was 518 points, the
trial court was permitted to sentence Mr. Weeks to the next
higher cell under rule 3.701(d)(14) without requiring a
reason for departure based on his violation of probation,
which would have placed Mr. Weeks in a permitted sentencing
range of twenty-two years to life. It concluded that because
the trial court could have imposed a life sentence absent the
error, the error did not render Mr. Weeks' sentence
State appropriately concedes that the postconviction court
erred by ruling that 85 victim injury points were properly
assessed. In Speights, this court held that Mr.
Speights was improperly assessed victim injury points because
the 1984 version of rule 3.701(d)(7) stated that victim
injury is to be scored "if it is an element of any
offenses at conviction" and "the phrasing of the
[sexual battery with great force] statute requires the
prosecution to prove only that a certain level of force was
used but not that actual injury occurred" and not that
the force caused an actual injury. 102 So.3d at 672-73
(emphasis in first quotation omitted). The crimes to which
Mr. Weeks pleaded did not require the State to prove injury,
so under Speights, the victim injury points were
State also appropriately concedes that the postconviction
court erred by finding that even if the scoresheet
erroneously assessed points for serious injury, the trial
court was permitted to impose a life sentence because Mr.
Weeks violated his probation. Mr. Weeks committed his
offenses in 1986, and the 1986 version of rule 3.988 confirms
Mr. Weeks' assertion that 518 points would place him in a
cell that recommends a sentence of twenty-two to twenty-seven
years; the next cell permits a sentence of twenty-seven to
forty years. The postconviction court appears to have relied
on a later version of rule 3.988, which would reflect that
the permitted range of the next cell is twenty-two years to
life. However, that version is not applicable to crimes that
occurred in 1986. See Jones v. State, 615 So.2d 705,
706 (Fla. 2d DCA 1992) (holding that rule revision that was
adopted in 1988 did not apply to offenses that took place in
1986). Rule 3.701(d)(14) gave the sentencing court discretion
to impose a sentence in the next higher cell without
requiring a reason for departure, and Mr. Weeks ...