       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            TERRY MOORE,
                              Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D17-3462

                            [March 13, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Timothy L. Bailey, Judge; L.T. Case No. 09-021764-CF-
10A.

  Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley B. Moody, Attorney General, Tallahassee, and Alexandra A.
Folley, Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

    Appellant, Terry Moore, appeals the trial court’s order revoking his
probation and imposing sentence, contending the trial court erred by: (1)
finding that the State’s discovery violation was not prejudicial to the
defense; (2) considering his alleged lack of remorse when sentencing; and
(3) imposing a sentence based on an erroneous scoresheet and an
improper determination that he qualified for sentencing as a violent felony
offender of special concern (“VFOSC”), where the statutory provisions
applicable for sentencing such offenders were not followed. We affirm the
trial court’s decision about the discovery violation without discussion. We
also affirm the sentencing issue regarding Appellant’s alleged lack of
remorse without discussion. See Peters v. State, 128 So. 3d 832, 848 (Fla.
4th DCA 2013) (determining that consideration of remorse is appropriate
when the defendant injects the issue of rehabilitation into the case by
arguing that after years in prison he has been rehabilitated).

  As discussed below, the State concedes error regarding the scoresheet
and Appellant’s entitlement to resentencing, but disagrees with Appellant’s
argument that the trial court cannot resentence him as a VFOSC on
remand. The State further argues that the trial court’s written order
determining that Appellant violated probation does not comport with the
trial court’s oral pronouncement at the conclusion of the violation of
probation hearing. We agree with the State’s arguments and reverse the
trial court’s written order determining a violation of probation and the
sentence imposed thereafter. We remand the case for entry of a written
order revoking probation that conforms to the oral pronouncement and for
resentencing using a corrected scoresheet. We further direct the trial court
to comply with the statutory provisions for sentencing Appellant as a
VFOSC.

                                Background

   Appellant was convicted of second degree murder and sentenced to six
years in prison, followed by five years of probation. While Appellant was
on probation, an affidavit of violation of probation was filed, alleging
Appellant violated probation by traveling to another county without
procuring the consent of his probation officer and by committing a criminal
trespass in Leon County. After a violation hearing, the trial court orally
pronounced its finding that Appellant willfully and substantially violated
probation as alleged in the violation affidavit. The trial court sentenced
Appellant to 279.45 months in prison, the lowest permissible sentence
according to his scoresheet, followed by five years of probation. Appellant
gave notice of appeal.

    While the appeal was pending, Appellant filed a rule 3.800(b)(2) motion,
arguing that his “scoresheet included 12 points, rather than 6 points”
because he was listed as a VFOSC, but the trial court failed to hold a
hearing or make written findings regarding Appellant’s status as a VFOSC.
The State responded, arguing that the motion should be denied because:
(1) the argument raised “is not cognizable under” rule 3.800(b)(2); and (2)
on the merits, Appellant qualified as a VFOSC regardless of any findings.
The trial court denied Appellant’s motion, citing to the reasons in the
State’s response.

    Appellant filed a subsequent rule 3.800(b)(2) motion, arguing that the
record did not contain a written order revoking Appellant’s probation.
After Appellant filed his initial brief, the State responded, agreeing that
there was no such written order in the record. However, after Appellant
filed his initial brief, the trial court entered an order granting Appellant’s
motion, stating its finding that Appellant willfully and substantially
violated his probation by leaving the county without his probation officer’s
consent. The written order did not conform to the oral pronouncement at

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the conclusion of the violation hearing where the trial court additionally
found Appellant violated probation by committing a trespass.

                            Appellate Analysis

    Appellant argues that the trial court erred in imposing a sentence based
on an improper scoresheet. “Because Appellant’s argument concerning
his scoresheet presents a pure issue of law, we apply the de novo standard
of review.” Somps v. State, 183 So. 3d 1090, 1092 (Fla. 4th DCA 2015).

   Appellant argues that the trial court did not follow the statutory
procedure in sentencing him as a VFOSC, where the State did not request
a VFOSC designation and the trial court did not orally pronounce a finding
that he qualified for the designation. Additionally, Appellant points out
that the trial court did not conduct a danger hearing pursuant to section
948.06(8), Florida Statutes (2009), or make any written findings that
Appellant is or is not a danger to the community. Appellant argues that
the scoresheet used for sentencing improperly included twelve points for a
community sanction violation by a VFOSC. Appellant asks us to reverse
and remand for a new sentencing hearing where he cannot be designated
as a VFOSC. Although no objection to the scoresheet was made during
the sentencing hearing, the issue was preserved by Appellant’s Florida
Rule of Criminal Procedure 3.800(b)(2) motion. See Arnone v. State, 204
So. 3d 556, 557 (Fla. 4th DCA 2016) (finding the defendant preserved his
arguments on appeal as to the VFOSC finding by filing a rule 3.800(b)(2)
motion).

   As discussed more fully below, the State concedes that the scoresheet
used by the trial court assessed too many total points and that Appellant
is entitled to a new sentencing hearing with a corrected scoresheet.
However, the State contends that upon resentencing, the trial court is not
foreclosed from treating Appellant as a VFOSC.

   The scoresheet used at sentencing calculated that Appellant scored
400.6 points. It contained subsection VI, a community sanction violation
section, filled out as follows:




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(arrows added). As the State concedes, the “box” for 12 points for VFOSC
is checked (left arrow), but argues that there were no additional points
actually added for subsection VI (right arrow). The State concedes error
though, because the calculation of the total scoresheet points is incorrect.
The scoresheet states that the total points add up to 400.6 points, but the
numbered subsections of the scoresheet list the following subtotal of
points: (1) 116, (2) 0, (3) 240, (4) 30.6, (5) 4, and (6) 0. These subtotals
add up to a total of 390.6 points, not 400.6 points as stated on the
scoresheet.

    We agree with the State that Appellant is entitled to a new sentencing
hearing with a corrected scoresheet. As the State concedes, because the
trial court sentenced Appellant to the lowest permissible sentence, he is
entitled to resentencing as it cannot be said that the same sentence would
have been imposed despite the scoresheet error. State v. Anderson, 905
So. 2d 111, 118 (Fla. 2005) (explaining the “would-have-been-imposed”
test to determine whether a scoresheet error affected sentencing and if the
record does not conclusively establish that the trial court would have
imposed the same sentence despite the scoresheet error, remand for
sentencing is required).

   We also agree with the State that the trial court is not foreclosed from
resentencing Appellant as a VFOSC. Appellant’s arguments on appeal
conflate his status as a VFOSC with the ability of the State to demand
mandatory revocation of his probation by having him declared a danger to
the community as a VFOSC. Appellant’s arguments in this case are
similar to the defendant’s arguments in Whittaker v. State, 223 So. 3d 270
(Fla. 4th DCA 2017). There, the defendant argued that he should have
been given six points on his scoresheet instead of twelve as a VFOSC
because the trial court did not follow the statutory procedure under
section 948.06(8), Florida Statutes, and also argued this Court should
“reverse his sentence and remand for a new sentencing hearing where he
cannot be designated as a VFOSC.” Id. at 272-73. Similar to this case,
the State agreed the defendant was entitled to a new sentencing hearing,
but disagreed with the relief on remand. Id. at 273. In Whittaker we said:

      [B]ecause a defendant’s designation as a VFOSC does not
      depend on a finding that the defendant poses a danger to the
      community, a trial court’s failure to make written findings
      under section 948.06(8)(e) as to whether a defendant poses a
      danger to the community does not entitle the defendant to
      have the VFOSC designation stricken.

Id. at 274. Additionally, we stated:

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      A trial court’s finding under section 948.06(8)(e) as to whether
      a defendant who qualifies as a VFOSC poses a danger to the
      community is significant because it determines whether
      revocation of probation is mandatory or discretionary.
      § 948.06(8)(e) 2., Fla. Stat. (2015). However, because a
      guidelines sentence “would be legal irrespective of the findings
      made pursuant to section 948.06(8)(e),” a trial court’s failure
      to make the mandated written findings under section
      948.06(8)(e) does not necessitate reinstatement of the
      defendant’s probation. See Barber[ v. State, 207 So. 3d 379,
      383-85 (Fla. 5th DCA 2016)]. Rather, “the proper remedy is
      to reverse the sentencing order and remand for another
      sentencing hearing with directions that the trial court make
      the necessary written findings under section 948.06(8)(e)
      when imposing its sentence.” Id. at 385.

Id. at 274-75.

   The same principles apply to this case. It is clear that Appellant
qualifies as a VFOSC. Section 948.06(8) defines a VFOSC, in part, as “a
person who is on . . . [f]elony probation or community control related to
the commission of a qualifying offense committed on or after the effective
date of this act.” § 948.06(8)(b)1., Fla. Stat. (2009). Under the list of
enumerated “qualifying offenses” is murder. § 948.06(8)(c)2., Fla. Stat.
(2009). Since Appellant was on probation for murder, he therefore meets
the statutory requirements.

    We reverse the sentence imposed in this case and remand for
resentencing with a properly calculated scoresheet. On resentencing the
trial court shall comply with the provisions of section 948.06(8).
Additionally, the written order revoking probation and stating the
conditions of probation the trial court found Appellant violated did not
match the oral pronouncement made during the violation hearing. We
direct the trial court to vacate the order revoking probation and enter a
new written order that conforms to the oral pronouncement of which
conditions of probation it found Appellant violated. See Hernandez v.
State, 254 So. 3d 1091, 1092 (Fla. 3d DCA 2018) (remanding to the trial
court “for correction of the written order for revocation so that it conforms
to the trial court’s oral pronouncement”).

   Affirmed in part, reversed in part, and remanded with instructions.

GROSS and FORST, JJ., concur.

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                      *        *        *

Not final until disposition of timely filed motion for rehearing.




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