       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                            JOHN POWERS,
                              Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D17-1652

                          [November 28, 2018]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jeffrey R. Levenson, Judge; L.T. Case No. 13-7743-CF-
10A.

  Carey Haughwout, Public Defender, and Logan T. Mohs, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman,
Assistant Attorney General, West Palm Beach, for appellee.

CONNER, J.

   Appellant, John Powers, appeals his judgment and sentence entered
below for DUI Manslaughter—Unlawful Blood-Alcohol Level (“UBAL”),
raising several issues. The State concedes error as to all but two of the
issues raised. Regarding the contested issues, we find merit as to
Appellant’s contention that the trial court erred by considering a
scoresheet with improper points for prior record and reverse for a de novo
resentencing. Our reversal renders the remaining issue not conceded by
the State as moot.

                               Background

   The information charged Appellant DUI Manslaughter in violation of
sections 316.193(1)(a) and 316.193(3)(a)(b)(c)3.a, Florida Statutes, in
Count 1 and DUI Manslaughter—UBAL in violation of sections
316.193(1)(b) and 316.193(3)(a)(b)(c)3.a, Florida Statutes, in Count 2.
Both charges were in connection with a fatal crash.
   Appellant entered an open guilty plea to both counts upon the State’s
agreement to drop one of the counts at sentencing because the counts
were duplicate. At sentencing, the State dropped Count 1, and Appellant
was adjudicated guilty of Count 2, DUI Manslaughter—UBAL. However,
the judgment lists the offense as having been committed under both
sections 316.193(1)(a) and 316.193(3)(a)(b)(c)3.a, Florida Statutes.

   Appellant’s sentencing scoresheet listed eleven prior offenses by year
and county only, except for one case for which the case number was
provided. All of the offenses were listed to have occurred in 1999 or earlier.
Appellant’s scoresheet stated a total of 9.4 points for prior record. Notably,
the State did not enter any evidence of Appellant’s prior record at the
sentencing hearing.

   The trial court sentenced Appellant to 132 months in prison, followed
by two years of community control, followed by two years of probation.
The trial court imposed a four-year minimum mandatory prison sentence.
The order assessing charges, costs, and fees imposes a $400 cost for
“public defender assistance (PD fee imposed),” although no such fee was
orally pronounced as part of Appellant’s sentence. The trial court orally
pronounced that Appellant was ordered “to have a drug and alcohol
evaluation and follow-up treatment as deemed appropriate,” but did not
orally state that Appellant was required to pay for the evaluation and
treatment, nor did it specifically waive Appellant’s obligation to pay for
those services. Nevertheless, the trial court’s written sentencing order
requires Appellant to be “responsible for the payment of any costs incurred
while receiving said evaluation and treatment, unless waived by court.”
The written sentencing order also requires Appellant to “maintain an
hourly accounting of all [his] activities on a daily log” to submit to his
probation officer upon request.        Likewise, this condition was not
mentioned during the trial court’s oral pronouncement of Appellant’s
sentence.

   Additionally, the written sentencing order reflects a clerical error on the
third page, in which it indicates the sentence is for Count 1 (which was
dropped), while the first two pages of the order correctly indicate the
sentence is for Count 2.

   After sentencing, Appellant gave notice of appeal. During the pendency
of this appeal, Appellant filed two motions to correct sentencing errors
pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The trial court
did not rule on either motion within sixty days of their respective filings,
which constitutes a denial of both under Florida Rule of Criminal
Procedure 3.800(b)(2)(B).

                                      2
                             Appellate Analysis

    Appellant raises six issues on appeal, contending the trial court erred
by: (1) considering a scoresheet that contained improper prior record
points; (2) denying Appellant’s motions to correct sentence asserting a lack
of evidence to support the prior record for which scoresheet points were
assessed; (3) imposing a $400 public defender fee; (4) imposing a payment
requirement for special conditions of supervision without an oral
pronouncement of the obligation at sentencing; (5) making a scrivener’s
error in the written judgment regarding the offense statute number; and
(6) making a scrivener’s error in the written judgment regarding the count
of the sentence.

   The State concedes error as to issues 3, 4, 5, and 6. As analyzed below,
we find merit with Appellant’s arguments regarding issue 1 (assessment of
prior record points) and reverse as to that issue as well. Because we
reverse on issue 1, issue 2 (proof of prior record) is moot.

Improper Assessment of Prior Record Points

   The standard of review for a motion to correct sentencing error is de
novo. Willard v. State, 22 So. 3d 864, 864 (Fla. 4th DCA 2009).

    Appellant’s scoresheet listed eleven offenses as part of his prior record,
all occurring in 1999 or earlier. Appellant argues that the eleven offenses
listed as part of his prior record should not have been scored due to their
age.

   Florida Rule of Criminal Procedure 3.704 excludes various offenses
from consideration as it relates to an offender’s prior record. Relevant
here, rule 3.704(d)(14)(A) provides:

      Convictions for offenses committed more than 10 years before
      the date of the commission of the primary offense must not be
      scored as prior record if the offender has not been convicted
      of any other crime for a period of 10 consecutive years from
      the most recent date of release from confinement, supervision,
      or other sanction, whichever is later, to the date of the
      commission of the primary offense.

Fla. R. Crim. P. 3.704(d)(14)(A) (emphasis added). Notably, the rule
provides that “[a]ny uncertainty in the scoring of the offender’s prior record
must be resolved in favor of the offender[.]”             Fla. R. Crim. P.
3.704(d)(14)(D).


                                      3
    The parties agree that none of Appellant’s listed prior offenses were
committed within 10 years of the date of the commission of the primary
offense in this case. The parties also agree that pursuant to rule
3.704(d)(14)(A), unless the above emphasized provision of the rule applied
to one of his offenses, none of them should have been included. The point
in contention in this appeal involves the parties’ disagreement over the
application of this provision to Appellant’s 1999 grand theft conviction, for
which he was sentenced to two years of probation beginning March 12,
1999. Appellant points out that this sanction was scheduled to end March
2001, which is more than 10 years before the June 12, 2011 date of the
primary offense in this case—meaning that the saving provision would not
have applied to this offense.

   However, review of the case information record reflects that the
probation for that charge did not end in March 2001, but rather was
terminated on May 25, 2011—approximately three weeks before the
primary offense in this case. The case information record also shows that
an affidavit of violation of probation was filed on February 2, 2000, but
that no action was taken until 2011, when the probation violation was
withdrawn and probation was terminated on May 25, 2011. Based on the
face of the record, therefore, it would appear that Appellant was under
supervision within 10 years of the primary offense in this case, such that
his prior offenses could be scored.

   Appellant argues, however, that despite what the record says, it is
legally incorrect. Appellant explains that although provisions exist today
that can toll probation when a probationer violates the terms of his
supervision, which could have allowed his probation to extend beyond its
original two-year span and last until 2011, provisions are inapplicable to
the 1999 grand theft case. Specifically, Appellant points out that section
948.06(1)(f), Florida Statutes, which provides for tolling of probation where
a violation of probation is filed, was not made effective until July 1, 2001,
which is four months after Appellant’s probation had already expired in
March 2001. 2001 Fla. Sess. Law Serv. Ch. 2001-109 (C.S.S.B. 888)
(WEST). The State agrees that the tolling provisions of section 948.06(1)
are inapplicable to the 1999 grand theft case. Zaborowski v. State, 126
So. 3d 405, 408 (Fla. 2d DCA 2013) (holding that the tolling provisions of
section 948.06(1), which did not exist at the time of the probationer’s
violations, could not be retroactively applied where the probationary period
had expired before the statute was enacted). Therefore, there appears to
be no dispute that Appellant’s probation could not have been tolled by the
State’s filing of its affidavit of violation of probation in 2000.



                                     4
   The parties also appear to agree that tolling did not exist at the time for
anything other than absconsion. See Young v. State, 739 So. 2d 1179,
1180 (Fla. 4th DCA 1999) (allowing for tolling during absconsion).
However, although the affidavit of violation of probation made no allegation
of absconsion, the State suggests Appellant’s probation could have still
been tolled based on absconding—asserting that “it is unknown if there
were ever any formal allegations of absconding in [Appellant’s] 1999 grand
theft case.” In this regard, the State asserts that there is a factual dispute
as to whether there are any facts in the 1999 grand theft case which would
have tolled Appellant’s probation. To this end, the State advises that it
has no objection to this Court remanding the case to the trial court to
“resolve the factual dispute of when probation terminated.”

    Although Appellant disagrees that there is a factual issue, he contends
in the alternative that, should we determine this is a factual dispute, rule
3.704(d)(14)(D) requires resolution of such in his favor or by the trial court
on remand. However, Appellant’s primary argument is that the date on
which his probation ended is a legal question, and that, with no tolling in
effect, Appellant’s probation ended in March 2001, and the trial court had
no jurisdiction over Appellant after that date. See Mobley v. State, 197 So.
3d 572 (Fla. 4th DCA 2016) (“It is axiomatic that ‘[o]nce a term of probation
has expired, a court lacks jurisdiction to entertain an application for
revocation of probation based on a violation which occurred during the
probation period unless, during the term of probation, appropriate steps
were taken to revoke or modify probation.’” (alteration in original) (quoting
Shenfeld v. State, 14 So. 3d 1021, 1023 (Fla. 4th DCA 2009))) . As such,
Appellant argues that when the State finally purported to drop the
probation violation on May 25, 2011, it did so in a court that had lost
jurisdiction over ten years earlier. Additionally, Appellant emphasizes that
he was never found to have violated his probation; rather the pending
violation charge was “voluntarily withdrawn,” such that even if tolling had
been possible in a case this old, it would be unjust to allow the State to
extend a defendant’s probationary period for ten years effectively
prolonging the relevance of a prior record which the rules clearly intend to
exclude, and then to not even pursue the underlying violation.

   We agree that although the State is correct that the record indicates
the trial court did purport to terminate Appellant’s probation in 2011, it
did not have jurisdiction to do so because Appellant’s probation had
already been automatically terminated by virtue of it expiring in 2001.
Furthermore, the record does not reflect that anything occurred before
March 2001 to toll the original expiration date for probation. As Appellant
points out, while the trial court may not have realized his probation ended
in 2001, such does not change the fact that it was. See id. Furthermore,

                                      5
the State concedes that the affidavit of probation in this record does not
allege that Appellant absconded such as would allow his probation to be
tolled, but merely suggests that there could possibly be other “unknown”
documents that do allege absconsion. As such, the State does not even
argue that evidence of absconsion does exist, it only argues that evidence
may exist. However, the State has not referenced any authority that would
allow it another opportunity to determine whether there is any other
unknown evidence that could possibly exist, where the records it relied on
below appear to be consistent with Appellant’s claim that his probation
expired in 2001 and that he was not on probation when his probation was
eventually purportedly revoked.

   Allowing the State another opportunity to determine whether any other
unknown evidence of absconsion exists and to introduce it at another
hearing would give it a second bite at the apple. Instead, where the parties
acknowledge that the affidavit and record says what it does, a legal, not a
factual, question remains: Whether the law, when applied to the affidavit
of violation of probation, comports with what the records show. There is
no dispute that application of the law to the facts as shown by the record
does not reflect any allegation of absconsion by Appellant such that would
have tolled his probation. Therefore, as a matter of law, the 9.4 points for
the prior offenses should not have been included on Appellant’s
scoresheet.

   Because the record does not conclusively demonstrate that the trial
court would have imposed the same sentence had a correct scoresheet
been presented, we reverse Appellant’s sentence and remand for a de novo
resentencing. See State v. Anderson, 905 So. 2d 111, 118 (Fla. 2005);
Naugle v. State, 244 So. 3d 1127, 1128 (Fla. 4th DCA 2018) (explaining
that when scoresheet errors are presented via (1) direct appeal, (2) Florida
Rule of Criminal Procedure 3.800(b), or (3) Florida Rule of Criminal
Procedure 3.850, then “any error is harmless if the record conclusively
shows that the trial court would have imposed the same sentence using a
corrected scoresheet” (quoting Brooks v. State, 969 So. 2d 238, 241 (Fla.
2007))).

                                Conclusion

    Having determined that the trial court considered a scoresheet with
improper prior record points at sentencing, we reverse the sentence
imposed and remand for a de novo resentencing. The State concedes the
trial court made several other errors in the written sentence. We trust the
trial court will not commit the same errors upon resentencing.



                                     6
  Reversed and remanded.

TAYLOR and KUNTZ, JJ., concur.

                          *      *        *

  Not final until disposition of timely filed motion for rehearing.




                                 7
