BRIAN S. BURKEEN v. STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: January 20, 2021
• Docket: 20-1646
• Status: Published

Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

BRIAN SHANE BURKEEN, Appellant,

v.

STATE OF FLORIDA, Appellee.

No. 4D20-1646

[January 20, 2021]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Indian River County; Dan L. Vaughn, Judge; L.T. Case No. 312018CF000406A.

Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Deborah Koenig, Assistant Attorney General, West Palm Beach, for appellee.

ON CONFESSION OF ERROR

ARTAU, J.

The trial court adjudicated the defendant guilty following the entry of his open plea of nolo contendere to the charged offense of first degree felony grand theft. The defendant appeals, claiming he was erroneously sentenced as if he was charged with aggravated white-collar crime, an offense separate and distinct from that to which he pled, resulting in his primary offense at sentencing being scored incorrectly on his sentencing guidelines scoresheet. The State agrees and confesses error.

The record confirms that this scoresheet error was preserved by the defendant through his timely filed post-sentencing Rule 3.800(b)(2) motion. 1 See Jackson v. State, 983 So. 2d 562, 572 (Fla. 2008) (sentencing guidelines scoresheet error is properly preserved through a Rule ———————————————————————————————————— 1Fla. R. Crim. P. 3.800(b)(2) (“If an appeal is pending, a defendant . . . may file in the trial court a motion to correct a sentencing error.”). 3.800(b)(2) motion) (citing State v. Anderson, 905 So. 2d 111, 118 (Fla. 2005)). Moreover, the record does not conclusively show that the same sentence would have been imposed using a correctly computed scoresheet. See Anderson, 905 So. 2d at 115-16 (requiring reversal of a sentence if an appellate court “cannot determine conclusively from the record that the trial court would have imposed the same sentence despite the erroneous scoresheet”). As confessed by the State, we reverse the defendant's sentence and remand for resentencing pursuant to a properly computed sentencing guidelines scoresheet.

Reversed and remanded with instructions for resentencing.

GERBER and KUNTZ, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.