MARCO D. PIERCE, Appellant,
STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Seminole County, Melissa
D. Pierce, Graceville, pro se.
Moody, Attorney General, Tallahassee, and Allison L. Morris,
Assistant Attorney General, Daytona Beach, for Appellee.
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.
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).
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.
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. 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.
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.
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))).
we remand for resentencing under a scoresheet utilizing only
Pierce's convictions of counts 2 through 5.
and REMANDED for resentencing under a ...