final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; Gary L. Sweet, Judge; L.T. Case No.
Haughwout, Public Defender, and Jessica A. De Vera, Assistant
Public Defender, West Palm Beach, for appellant.
Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for
Davis appeals his conviction and sentence for numerous
drug-related offenses following an open plea. Appellant
argues that the trial court fundamentally erred by: (1)
adjudicating him guilty of second-degree felony sale of MDMA;
and (2) imposing charges for specific narcotics that were not
charged. For the reasons discussed below, we reverse and
remand for correction of the judgment as to four of the
counts and resentencing as to one of the counts.
was charged by information with 64 counts of drug-related
offenses, including the trafficking, purchase, sale or
delivery, and conspiracy to sell cocaine, MDMA,
hydromorphone, and oxycodone. Appellant agreed to plead no
contest to a number of the counts, including count 26, for a
negotiated maximum sentence of thirty years. Count 26 charged
Appellant with sale or delivery of MDMA in violation of
section 893.13(1)(a) of the Florida Statutes and was
designated as a second-degree felony offense.
to the change of plea hearing, the State drafted a written
plea agreement which Appellant referenced in his plea form.
Except where Appellant was pleading to a lesser included
offense, the written agreement only referenced the count
numbers listed in the information and not the name of each
specific charge. At the change of plea hearing, the trial
court was provided with a copy of the written plea agreement
as well as the charging document. Pursuant to the plea
agreement, the court sentenced Appellant to thirty years in
prison on the first-degree felony trafficking of oxycodone
count and concurrent fifteen year sentences on each of the
remaining counts. Aside from counts 57, 70, and 105 which
were incorrectly listed as convictions for sale or delivery
of oxycodone, the convictions listed in the written judgment
coincided with the offenses listed in the information and
written plea agreement.
first argues that the trial court fundamentally erred by
adjudicating him guilty of second-degree felony sale of MDMA
(count 26) because the applicable statute classifies the
simple sale or delivery of MDMA as a third-degree felony.
Accordingly, Appellant requests that we remand for the trial
court to vacate his conviction for second-degree felony sale
or delivery of MDMA and to resentence him on the remaining
counts. The State concedes that count 26 was incorrectly
classified as a second-degree felony, however it argues that
Appellant is only entitled to resentencing on that count
only. We agree with the State.
893.13 of the Florida Statutes provides that any person who
sells or delivers a controlled substance named or described
in section 893.03(1)(c) commits a felony of the third degree.
§ 893.13(1)(a)2., Fla. Stat. (2014). MDMA is listed as a
controlled substance under section 893.03(1)(c), thus making
the simple sale or delivery of MDMA a third-degree felony.
§ 893.03(1)(c)165., Fla. Stat. (2014). Subsection
893.13(1)(c)2., however, provides that if a person sells or
delivers a controlled substance listed under section
893.03(1)(c) within 1, 000 feet of certain establishments,
the person "commits a felony of the second degree."
§ 893.13(1)(c)2., Fla. Stat. (2014).
present case, count 26 of the information alleged that
Appellant "did knowingly sell or deliver a controlled
substance, [MDMA], or any mixture thereof, in violation of
Florida Statute 893.13(1)(a)." It is clear, based on the
subsection of the statute referenced, that the State was
charging Appellant with simple third-degree felony sale or
delivery of MDMA in count 26. Nonetheless, the designation
"(F2)" was added at the end of the count, thus
incorrectly classifying count 26 as a second-degree felony.
This appears to have been a simple scrivener's error
which went uncaught by all parties throughout the proceedings
below. Appellant's plea of no contest to that incorrectly
classified count, in turn, resulted in a fifteen-year
sentence, which exceeds the five-year statutory maximum
punishment for a third-degree felony. § 775.082(3)(e).,
Fla. Stat. (2014).
these circumstances, the appropriate remedy is to reverse
Appellant's sentence for count 26 and remand for
correction of the judgment to reflect the correct degree of
felony and resentencing as to that count only. See
Jackson v. State, 564 So.2d 1243, 1244 (Fla. 5th DCA
1990). Appellant is not entitled to resentencing on the
remaining counts with a corrected scoresheet as
Appellant's sentence on those counts were imposed
pursuant to a negotiated plea agreement. See Ruff v.
State, 840 So.2d 1145, 1147 (Fla. 5th DCA 2003)
("In essence, scoresheet errors are considered harmless
when a sentence is the result of a negotiated plea
agreement." (footnote omitted)).
next argues that the court fundamentally erred when it orally
imposed charges for specific narcotics not alleged in the
information. Specifically, Appellant maintains that when the
court orally pronounced that Appellant was entering a plea of
no contest to "counts 1, 3, 5, 15, 18, 26, 36, 38 and 48
to the lesser included offense of sale or delivery of
Oxycodone, " the court converted counts 1, 3, 5, 15, 36,
and 38, which did not involve oxycodone related offenses,
into sale or delivery of oxycodone offenses. We reject this
argument because it is clear from the record that, except for
the counts which were amended to reflect lesser included
offenses, the parties intended to rely on the charging
document for a description of the charges associated with
each count number listed in the written plea agreement.
both parties agree that the written judgment incorrectly
lists the offenses for counts 57, 70, and 105 as sale or
delivery of oxycodone instead of sale or delivery of
hydromorphone as correctly pronounced at the change of plea
hearing. Accordingly, we remand with instructions that the
trial court correct the written ...