KELSEY J. HUGHES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 2014-05-30
No. 2D12-5894
DAVIS, C.J., and LaROSE, J., Concur.
139 So. 3d 477 Florida District Court of Appeal, Second District (2014) Positive Treatment
Cited by 6 cases

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Holding

The court held that the State failed to present sufficient corroborating evidence for two of the defendant's contested prior convictions used for sentencing.


Headnotes

[1] When a defendant disputes a prior offense at sentencing, the State must produce corroborating evidence of the disputed conviction or the court may not consider it.

[2] Information from a Department of Corrections website is considered hearsay and is insufficient to corroborate contested prior convictions at sentencing.

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Facts & Procedural History

The defendant appealed his conviction and sentence, specifically challenging the inclusion of contested prior convictions on his sentencing scoresheet…

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Opinion of the Court
KHOUZAM, Judge.

KHOUZAM, Judge.

Kelsey J. Hughes appeals his conviction and sentence for possession of cocaine. This appeal was originally filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), but this court ordered supplemental briefing on the issue of the adequacy of the State’s evidence to corroborate contested prior convictions at sentencing. We affirm the conviction but reverse and remand for re-sentencing because the State failed to meet its burden as to two of the three contested prior convictions.

At sentencing, Hughes’ counsel informed the trial court that on the previous day he had notified the State that Hughes disputed at least one of the prior convictions on his scoresheet. Counsel for Hughes then specified that Hughes was contesting three prior convictions: conspiracy to deliver cocaine (case number 92-11229), trafficking in cocaine (case number 97CF392), and shooting or throwing a deadly missile into a vehicle (case number 86CF4584).

Although the State produced a certified copy for the conviction for conspiracy to deliver cocaine, no other physical evidence was offered. The only support for the other convictions was information from the Department of Corrections’ website and from unspecified court computer documentation. Although it is clear from the transcript of the sentencing hearing that the clerk accessed some information on the court’s computer system, nothing in the record establishes specifically what was accessed by the clerk or reviewed by the judge. The trial court declared it was satisfied with the accuracy of the score-sheet with all three contested prior convictions included and sentenced Hughes to 41.4 months, the lowest permissible sentence.

‘When a defendant disputes a prior offense the sentencing court must either re*478quire the State to produce corroborating evidence of the offense or not consider the offense.” Smith v. State, 714 So.2d 1152, 1153 (Fla. 2d DCA 1998). Once disputed, the burden is on the State to produce “ ‘competent evidence of the disputed conviction.’ ” DeGeso v. State, 771 So.2d 1264, 1265 (Fla. 2d DCA 2000) (quoting Watson v. State, 591 So.2d 951, 953 (Fla. 2d DCA 1991)). “[HJearsay statements cannot support the inclusion of prior convictions on the scoresheet when an objection is made by a defendant.” Yankovski v. State, 785 So.2d 1283, 1284 (Fla. 5th DCA 2001).

Here, the conviction for conspiracy to deliver cocaine was supported by a certified copy and was therefore properly corroborated. See Jones v. State, 28 So.3d 981, 982 (Fla. 2d DCA 2010) (“The trial court ... correctly required that [the State] prove the ... conviction by obtaining a certified copy of the conviction.”). But the information pulled from the Department of Corrections’ website was hearsay and could not corroborate the convictions. See Yankovski, 785 So.2d at 1284 (concluding that a scoresheet prepared by the Department of Corrections was insufficient to corroborate contested prior convictions where the employee was not available as a witness). Finally, although a trial court may rely on “original court records” in addition to certified copies when verifying prior convictions, see Moore v. State, 944 So.2d 1063, 1064 (Fla. 4th DCA 2006), nothing in the appellate record establishes what records the trial court reviewed in this case. In the absence of certified copies, and without knowing what other records the trial court relied upon, we cannot conclude that the State met its burden to produce competent evidence to corroborate the contested prior convictions.

Consequently, the trial court erred by including two contested but uncorroborated prior convictions on Hughes’ score-sheet: trafficking in cocaine and shooting or throwing a deadly missile into a vehicle. The error is not harmless because Hughes was sentenced to the lowest permissible sentence under the incorrectly calculated scoresheet and nothing in the record conclusively shows the sentence would have been the same under an accurate one. See Fortner v. State, 830 So.2d 174, 175 (Fla. 2d DCA 2002) (“[A] scoresheet error is not deemed harmless unless the record conclusively shows that the trial court would have imposed the same sentence had it had the benefit of the corrected scoresheet.”). We must therefore remand for resentenc-ing, at which the State shall have the opportunity to present corroborating evidence of the contested prior convictions.

Convictions affirmed; sentence reversed and remanded for resentencing.

DAVIS, C.J., and LaROSE, J., Concur.


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  • Tundidor v. State, 221 So. 3d 587 (Fla. 2017)
    …State, 864 So. 2d 60, 61-62 (Fla. 4th DCA 2003) (affirming as harmless the denial of a claim of scoresheet calculation error because the record demonstrated that the departure sentence would have been imposed despite the error); cf. Hughes v. State, 139 So. 3d 477, 478 (Fla. 2d DCA 2014) (“The error is not harmless because [the defendant] was sentenced to the lowest permissible sentence under the incorrectly calculated scoresheet and nothing in the record conclusively shows the sentence would have been the sa…
  • Morse v. State, 169 So. 3d 1257 (Fla. 5th DCA 2015)
    …not harmless because [Appellant] was sentenced to the lowest permissible sentence under the incorrectly calculated scoresheet and nothing in the record conclusively shows the sentence would have been the same under an accurate one.” Hughes v. State, 139 So. 3d 477, 478 (Fla. 2d DCA 2014). Because the record does not conclusively show that the trial court would have imposed the same sentence using a properly prepared score-sheet, we reverse Appellant’s sentence and remand for resentencing with a corrected scor…
  • Woods v. State (Fla. 4th DCA 2020)
    …offense from Monmouth County Superior Court. “Proper competent corroborating evidence includes certified copies of the convictions and ‘original court records.’” Taulbee v. State, 277 So. 3d 1133, 1135 (Fla. 1st DCA 2019) (quoting Hughes v. State, 139 So. 3d 477, 478 (Fla. 2d DCA 2014)). Thus, even if required to corroborate the prior offense, the State offered sufficient proof. Moreover, the pre-sentence investigation report reflected that Defendant was arrested on the contested offense by “Homdel PD” in…

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