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Pierce v. State

Florida Court of Appeals, Fifth District

October 11, 2019

MARCO D. PIERCE, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          3.800 Appeal from the Circuit Court for Seminole County, Melissa Souto, Judge.

          Marco D. Pierce, Graceville, pro se.

          Ashley Moody, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Appellee.

          PER CURIAM.

         Marco D. Pierce appeals the denial of his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). Pierce was convicted of several crimes committed in 2008, including: attempted second-degree murder, a lesser-included offense (count 1); robbery with a deadly weapon (count 2); burglary of a structure with an assault (count 3); armed burglary of a structure (count 4); and resisting an officer with violence (count 5). Pierce received a thirty-year sentence on count 1, life sentences on counts 2, 3, and 4, and a fifteen-year sentence on count 5.

         In 2013, Pierce petitioned for postconviction relief, alleging ineffective assistance of appellate counsel. This Court granted Pierce's petition and vacated his conviction of count 1. Pierce v. State, 121 So.3d 1091, 1093-94 (Fla. 5th DCA 2013).

         On remand, the State elected not to pursue count 1. Pierce moved for recalculation of his sentencing scoresheet and for resentencing, but the lower court denied relief, relying on Brooks v. State, 969 So.2d 238 (Fla. 2007). On appeal, Pierce maintains that he is entitled to resentencing utilizing a recalculated scoresheet. We agree.

         In Brooks, the Florida Supreme Court articulated the "could have imposed" standard: When a defendant files a rule 3.800(a) motion alleging a sentencing scoresheet error, if the trial court could have imposed the same sentence using a correct scoresheet, any error was harmless. Id. at 243. However, we agree with our sister court, which held the "could have imposed" standard is inapplicable when a defendant seeks resentencing after a vacated conviction.[1] See Cox v. State, 192 So.3d 581, 582 (Fla. 4th DCA 2016) (explaining that "could have imposed" standard applies when defendant alleges sentencing scoresheet error at time it was completed, not when defendant requests new sentencing scoresheet and resentencing following vacated conviction). Accordingly, we find that the lower court applied the incorrect standard in denying Pierce's motion.

         "In general, when the vacation of a conviction would result in changes to the defendant's scoresheet, the defendant is entitled to be resentenced using a corrected scoresheet." Tundidor v. State, 221 So.3d 587, 605 (Fla. 2017) (quoting Fernandez v. State, 199 So.3d 500, 502 (Fla. 2d DCA 2016)). Accordingly, Pierce was entitled to resentencing under a recalculated scoresheet utilizing only his convictions of counts 2 through 5.

         "However, the error is harmless if the record conclusively shows that the trial court would have imposed the same sentence using a corrected scoresheet." Id. (citing State v. Anderson, 905 So.2d 111, 118 (Fla. 2005)). We find that the lower court's error in denying Pierce's motion was not harmless, as the life sentences imposed upon Pierce were not mandatory. See Termitus v. State, No. 5D19-583, 2019 WL 4383272, at *1 (Fla. 5th DCA Sept. 13, 2019) ("Moreover, the error is not harmless if the trial court had discretion when imposing sentences on the remaining counts and sentenced the defendant in his absence using an incorrect scoresheet." (citing Poma v. State, 245 So.3d 977, 978 (Fla. 3d DCA 2018))).

         Accordingly, we remand for resentencing under a scoresheet utilizing only Pierce's convictions of counts 2 through 5.

         REVERSED and REMANDED for resentencing under a ...


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