MARCO D. PIERCE
v.
STATE OF FLORIDA
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When a defendant seeks resentencing after a conviction is vacated, the defendant is entitled to resentencing using a recalculated scoresheet, and the 'could have imposed' harmless error standard from Brooks v. State does not apply.
[1] When a defendant's conviction is vacated, the defendant is entitled to resentencing using a recalculated scoresheet that excludes the vacated conviction, and the 'could h…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“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.”
Court's statement of the applicable legal standard for resentencing after conviction vacation
Pierce was convicted in 2008 of multiple crimes and received sentences including a 30-year sentence and three life sentences. In 2013, Pierce's convic…
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
MARCO D. PIERCE,
Appellant,
v. Case No. 5D19-1123
STATE OF FLORIDA,
Appellee.
________________________________/
Opinion filed October 11, 2019
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 (count1); robbery with a deadly weapon (count2); burglary of a structure with an assault (count3); armed burglary of a structure (count 4); and resisting an officer with
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 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.
1 The trial court was bound by the Fourth District’s decision in Cox. See Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (explaining that decisions of district courts of appeal represent law of Florida unless and until they are overruled by Florida Supreme Court, and in absence of inter-district conflict, district court decisions bind all Florida trial courts).
REVERSED and REMANDED for resentencing under a recalculated scoresheet.
COHEN and SASSO, JJ., and JACOBUS, B.W., Senior Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Pardo v. State, 596 So. 2d 665 (Fla. 1992)
- Brooks v. State, 969 So. 2d 238 (Fla. 2007)
- State v. Anderson, 905 So. 2d 111 (Fla. 2005)
- Fernandez v. State, 199 So. 3d 500 (Fla. 2d DCA 2016)
- Tundidor v. State, 221 So. 3d 587 (Fla. 2017)
- Pierce v. State, 121 So. 3d 1091 (Fla. 5th DCA 2013)
- COX v. State, 192 So. 3d 581 (Fla. 4th DCA 2016)