       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                             WESLEY PAUL,
                               Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D17-3469

                            [January 9, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Ernest A. Kollra, Judge; L.T. Case Nos. 08-10007CF10B,
09-18113CF10A, 009-18114CF10A and 10-20584CF10A.

  Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Brooke Moody, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

WARNER, J.

   Appellant appeals his sentence and the denial of his motion to correct
a sentencing scoresheet error, filed pursuant to Florida Rule of Criminal
Procedure 3.800(b)(1).     He claims that his original scoresheet was
incorrect, leading to a greater sentence, which error was not corrected on
resentencing. Because of the original scoresheet error, appellant also
sought resentencing for a conviction which was not ordered to be
resentenced by this court in his prior appeal. We affirm the resentencing
and denial of the motion to correct sentencing error, as the court was
provided the corrected sentencing scoresheet when determining
appellant’s sentences on the convictions that were challenged and
reversed on appeal. As to the undisturbed conviction and sentence, it was
not part of the resentencing, and the motion filed pursuant to Florida Rule
of Criminal Procedure 3.800(b)(1) did not apply to that sentence.

   In four separate cases, appellant, Wesley Paul, was charged with
multiple counts of organized fraud, grand theft, fraudulent use of personal
identification information, and structuring currency transactions to evade
reporting or registration requirements. All of these counts are either
second or third degree felonies, except for one first degree felony count.
Appellant entered an open plea as to all four cases, and in exchange, the
State filed a nolle prosequi of many of the charges against him.

    In June 2012, the court held a sentencing hearing. For appellant’s
remaining second degree felony charges, his counsel moved for a
downward departure sentence. Appellant’s crimes involved identity theft
and telemarketing timeshare resales, and there were about ninety-seven
victims, many of whom were elderly. The court denied appellant’s request
for a downward departure sentence. Appellant’s lowest permissible
sentence on the sentencing scoresheet was 138.45 months. The court
sentenced him to 140 months in prison (11.67 years) followed by ten years
of probation, to be served concurrently for all of the counts, including the
first degree felony.

    Appellant filed a Florida Rule of Criminal Procedure 3.800(a) motion to
correct illegal sentence in 2014, contending that the second degree felony
sentences were illegal as the combined prison and probation time exceeded
the statutory maximum of fifteen years for a second degree felony. The
trial court denied the motion, and Paul appealed.

    In Paul v. State, 195 So. 3d 420, 421 (Fla. 4th DCA 2016), this court
reversed, as the State conceded that his sentence on the second degree
felonies did exceed the statutory maximum. In our opinion, we ordered
resentencing as to those convictions but specifically noted that the opinion
did not disturb the first degree felony sentence.

    The court held a resentencing hearing in April 2017, at which appellant
was represented by counsel. At the very beginning of the hearing, counsel
informed the court that the original scoresheet contained an error which
would affect sentencing for all convictions, including the first degree
felony. Appellant had wrongfully been scored for four grand theft
convictions in Collier County, when there was actually only one conviction.
Defense counsel informed the court that the prosecutor had prepared a
new corrected scoresheet which reflected a lowest permissible sentence of
118 months. Counsel requested the court to consider resentencing on
both the second degree and first degree felony counts, given the scoresheet
error. The prosecutor objected to any resentencing on the first degree
felony because the appellate mandate had specifically excluded it. The
trial court agreed that it could not resentence on the first degree felony
and recommended the filing of a motion directed to that sentence for the
court to consider.


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   The court then proceeded to consider the resentence on the second
degree felonies. When the prosecutor stated that the original sentencing
judge had not considered the lowest permissible sentence when imposing
the original 140 month sentence, Paul objected and, after being sworn,
stated that the judge had specifically sentenced him close to the bottom of
the scoresheet’s lowest permissible sentence, and that appeared in the
transcript of the sentencing hearing. Noting that, the prosecutor stated
that if the court wanted a completely new sentencing, there were nearly
100 victims who would need to be contacted. The prosecutor also asked
the court to review the presentence investigation report and stated that
the court might find that the original sentence was too lenient.

    The court agreed with the prosecutor and returned to sentencing on the
second degree felonies. It determined that it would maintain the same
prison time at 140 months but reduce the probation to forty months to
bring the total sentence within the fifteen-year maximum. Defense
counsel suggested less prison time so that the appellant could get out and
make restitution to the victims. The court rejected that request, as the
original trial judge had not agreed that restitution was more important
than punishment. Having read the entire file, the court believed that the
original sentencing judge would have reduced the probationary period
rather than the prison time were that judge deciding the resentencing. It
is also clear that the court had the revised sentencing scoresheet showing
a lowest permissible sentence of 118 months, as defense counsel asked
the court for a copy of it to use in a motion directed to the first degree
felony and again noted to the court that the lowest permissible sentence
was 118 months, not the 138 months on the original scoresheet.

    On the day after the sentencing hearing, appellant filed a pro se rule
3.800(b)(1) motion to correct sentencing error. He contended that the
original scoresheet included extra prior record points that increased his
lowest permissible sentence, and he was entitled to be resentenced for all
counts based on a corrected scoresheet. One day after appellant filed his
motion, his attorney withdrew as counsel because appellant wished to
represent himself. Three days later, the court issued an order requiring
the State to respond to the defendant’s motion within ninety days. The
State, however, did not respond for about six months. In it, the State
argued that the trial court lacked jurisdiction because it had not ruled on
the motion within sixty days under Rule 3.800(b)(1), and appellant should
have filed a notice of appeal, as the trial court lost jurisdiction. Further,
it argued that the motion was legally insufficient and should be denied. In
November 2017, the trial court adopted the State’s response and denied
the motion. Appellant timely filed a notice of appeal from the date of the


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denial of the Rule 3.800(b)(1). This court treated the appeal as one from
the resentencing pursuant to Florida Rule of Appellate Procedure 9.140.

    Before addressing the merits, we must explain the procedural posture
of this appeal, as it appears that the State and the trial court are relying
on an older version of rule 3.800(b)(1) in determining that the motion to
correct the sentencing error was “deemed denied” once the trial court did
not rule within sixty days. Rule 3.800(b)(1) (2016) currently provides:

      (b) Motion to Correct Sentencing Error. A motion to correct
      any sentencing error, including an illegal sentence or incorrect
      jail credit, may be filed as allowed by this subdivision. . . .

      (1) Motion Before Appeal. During the time allowed for the filing
      of a notice of appeal of a sentence, a defendant or the state
      may file a motion to correct a sentencing error.

      (A) This motion shall stay rendition under Florida Rule of
      Appellate Procedure 9.020(i).

      (B) Unless the trial court determines that the motion can be
      resolved as a matter of law without a hearing, it shall hold a
      calendar call no later than 20 days from the filing of the
      motion, with notice to all parties, for the express purpose of
      either ruling on the motion or determining the need for an
      evidentiary hearing. If an evidentiary hearing is needed, it
      shall be set no more than 20 days from the date of the
      calendar call. Within 60 days from the filing of the motion,
      the trial court shall file an order ruling on the motion. A
      party may file a motion for rehearing of any signed, written
      order entered under subdivisions (a) and (b) of this rule within
      15 days of the date of service of the order or within 15 days of
      the expiration of the time period for filing an order if no order
      is filed. A response may be filed within 10 days of service of
      the motion. The trial court's order disposing of the motion for
      rehearing shall be filed within 15 days of the response but not
      later than 40 days from the date of the order of which
      rehearing is sought. A timely filed motion for rehearing shall
      toll rendition of the order subject to appellate review and the
      order shall be deemed rendered upon the filing of a signed,
      written order denying the motion for rehearing.

(first emphasis in original; second emphasis added). This version of the
rule became effective in 2016 and removed prior language that a rule

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3.800(b)(1) motion to correct any sentencing error is “deemed denied”
when not ruled on within sixty days. As the supreme court stated:

      the amendments are intended to resolve a conflict between the
      Rules of Criminal Procedure and the Rules of Appellate
      Procedure as to when a postconviction order is rendered for
      purposes of appeal. As relevant here, under Florida Rule of
      Appellate Procedure 9.020(i), “[a]n order is rendered when a
      signed, written order is filed with the clerk of the lower
      tribunal.” As recently amended, postconviction rules 3.192,
      3.800, and 3.850 permit motions for rehearing of orders
      issued under those rules to be “deemed denied” if no ruling is
      entered within a specific number of days. See In re Amend.
      Fla. Rules of Crim. Pro. & Fla. Rules of App. Pro., 132 So. 3d
      734 (Fla. 2013); In re Amend. Fla. Rules of Crim. Pro., 26 So.
      3d 534 (Fla. 2009). According to the report, this puts the
      rendition of postconviction orders in question, and could
      result in the delayed filing of a notice of appeal and dismissal
      by the appellate court. See, e.g., Mincey v. State, 158 So. 3d
      697 (Fla. 5th DCA 2015) (dismissing an appeal as untimely
      because the appellant failed to file a notice of appeal of an
      order denying rule 3.850 motions within 30 days from the date
      the court failed to issue an order on the appellant's motion for
      rehearing).

      The amendments we adopt in this case resolve any conflict in
      the rules by removing the “deemed denied” language from the
      portions of rules 3.192, 3.800, and 3.850 where the language
      could cause confusion as to rendition.

In re Amend. to Fla. Rules of Crim. Pro., 167 So. 3d 395, 396 (Fla. 2015).
Thus, to conform to the appellate rules, a signed, written order is required
to complete rendition, and according to Rule 3.800(b)(1)(A), the motion is
tolled until a signed written order is obtained, even where the trial court
extends the time for the State to respond to the motion and fails to rule
within sixty days. In this case, the order denying the timely filed motion
to correct sentencing error was not filed until November 2017, and the
notice of appeal is timely as to the resentencing judgment of April 2017.
This also disposes of the State’s incorrect argument that the motion was
moot for failure of the trial court to rule within sixty days.

   This case, however, is solely an appeal from the resentencing of the
second degree felonies. Only those were subject to resentencing, and
therefore, the motion to correct the sentencing error tolled rendition as to

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that resentencing. Appellant’s motion specifically stated that it was filed
pursuant to Rule 3.800(b)(1) to preserve a sentencing error for appeal if
filed within thirty days of the sentence. We do not address the claim of
scoresheet error as applied to the original sentencing on the first degree
felony because it was not remanded for resentencing.

    As to the resentencing on the second degree felonies, the motion is
legally insufficient. The motion claims that the original sentencing
scoresheet was incorrect, but it does not challenge the scoresheet
presented at the resentencing.       That scoresheet was correct and
acknowledged by the trial court. The record does not suggest that the
court did not understand that the scoresheet provided a revised lowest
permissible sentence which was lower than the original scoresheet. The
court determined to leave the same prison sentence, even with the
corrected scoresheet, based upon the court’s review of the entire record.
There was no requirement or obligation for the trial court to reduce the
sentence to the lowest permissible sentence, particularly under the facts
of this case with nearly 100 victims. Because there was no error in the
scoresheet used in the resentencing, the court correctly denied appellant’s
motion. There is no other error alleged in the sentence. Therefore, the
court’s ruling must be affirmed.

   Affirmed.

DAMOORGIAN and KUNTZ, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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