SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________
Case No. 6D2023-2329 Lower Tribunal No. 2014-CF-004335 _____________________________
CHRISTOPHER MARCH RENICK,
Petitioner,
v.
STATE OF FLORIDA,
Respondent. _____________________________
Petition Alleging Ineffective Assistance of Counsel. A Case of Original Jurisdiction.
April 17, 2025
PER CURIAM.
Christopher Renick seeks a writ of habeas corpus, alleging ineffective
assistance of appellate counsel pursuant to Florida Rule of Appellate Procedure
9.141(d). Renick argues that his appellate counsel was ineffective for failing to file
a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) during the
appeal of his probation violation sentence. He claims appellate counsel should have
alleged that his sentence was illegal because: (1) Renick was not present when the
sentence was pronounced; (2) no scoresheet was filed for the resentencing hearing; (3) the court relied on an earlier scoresheet that improperly added points by
incorrectly designating Renick as a violent felony offender of special concern; and
(4) his sentence was improperly enhanced when he was forced to wear a GPS
monitor.
Because we find merit in the arguments that appellate counsel was ineffective
for failing to raise the issues that Renick was sentenced under an erroneous
scoresheet and that the trial court did not pronounce sentence with Renick present,
we grant the petition in part. We deny the remainder of the petition without further
comment.
Background
Renick pleaded guilty to one count of lewd or lascivious molestation on a
person less than twelve years of age. He was adjudicated guilty, designated a sexual
predator, and sentenced to ten years of sex offender probation on October 2, 2015.
After violating his probation in 2017 and 2019,1 Renick again violated his probation
in 2021. The trial court held a violation of probation hearing and found that Renick
violated his probation and set a sentencing hearing for a later date. After conducting
a sentencing hearing, the trial court entered an order on October 15, 2021, revoking
1 In 2017, the trial court modified the probation to require Renick to serve 148 days jail with credit for 148 days and wear a GPS or electronic monitoring device. In 2019, the trial court again modified his probation to require him to serve 637 days jail with credit for 637 days served with all other conditions remaining in place.
2 Renick’s probation, and sentencing him to 105 months in prison. The order
indicated that a danger hearing was conducted and that the trial court found Renick
a danger to the community. Renick was present for this hearing.
Thereafter, defense counsel filed a motion to correct illegal sentence, arguing
that the sentence was based on the trial court’s finding that Renick was a danger to
the community as a violent felony offender of special concern (“VFOSC”), and
because the offense for which Renick was convicted occurred before the effective
date of the VFOSC statute, that finding was erroneous. The trial court held a hearing
on the matter and ultimately agreed that the VFOSC finding was erroneous, and
found that resentencing was needed because the court based Renick’s sentence on
the minimum under the VFOSC statute.
Renick was present at the November 29, 2021, resentencing hearing. At the
conclusion of testimony, defense counsel argued for a downward departure. The
State informed the trial court that the lowest permissible sentence was 105 months
in prison, and the defense did not object. It does not appear that a new scoresheet
was filed for the resentencing hearing. The court concluded the hearing without
resentencing Renick, stating, “I’ll make a ruling in chambers.” The defense did not
object to that statement either.
On December 9, 2021, the court entered a written “Order Granting Motion to
Correct Illegal Sentence and Conduct Resentencing.” The order vacated the prior
3 sentence, stated that the trial court found no mitigating circumstances for a
downward departure, and resentenced Renick “to the lowest permissible prison
[sentence] of 105 months.” On December 10, 2021, the court entered a probation
revocation order detailing Renick’s sentence of 105 months in prison, nunc pro tunc
to October 15, 2021.
On December 8, 2021, Renick, through counsel, filed a notice of appeal. On
appeal, counsel raised one issue—whether the trial court erred in finding that Renick
violated his probation and in sentencing him to prison. The Fifth District Court of
Appeal per curiam affirmed the judgment and sentence on October 18, 2022. See
Renick v. State, 350 So. 3d 1270 (Fla. 5th DCA 2022) (table decision). Thereafter,
Renick, pro se, filed the instant habeas petition.
Analysis
The standard of review to determine if a petitioner received ineffective
assistance of appellate counsel mirrors the Strickland standard. Jones v. Moore, 749
So. 2d 579, 583 (Fla. 2001) (referencing Strickland v. Washington, 466 U.S. 688
(1984)). As such, a habeas petitioner must show both:
1. Specific errors or omissions which show that appellate counsel’s performance deviated from the norm or fell outside the range of professionally acceptable performance and
4 2. The deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result.
Downs v. Moore, 801 So. 2d 906, 909-10 (Fla. 2001). “While the failure to raise
unpreserved claims on appeal is not normally a basis for ineffective assistance of
appellate counsel, the failure to raise unpreserved claims of fundamental error may
be.” Davis v. State, 383 So. 3d 717, 742 (Fla. 2024). A claim that counsel was
ineffective for failing to file a rule 3.800(b)(2) motion is cognizable in a petition
alleging ineffective assistance of appellate counsel. See Fortner v. State, 23 So. 3d
1275, 1276 (Fla. 2d DCA 2010).
Scoresheet Error
Renick claims that appellate counsel was ineffective for failing to raise a
scoresheet error in a motion pursuant to rule 3.800(b)(2). A defendant can raise a
claim of scoresheet error under rule 3.800(b)(2) during the pendency of the appeal.
State v. Anderson, 905 So. 2d 111, 118 (Fla. 2005).
The trial court used the Criminal Punishment Code Scoresheet dated October
15, 2021, to resentence Renick. That scoresheet shows that Renick scored 168
points, which resulted in a lowest permissible sentence of 105 months in prison.
However, the scoresheet incorrectly included 36 points for violation of probation as
a VFOSC and the trial court had previously determined that its finding that Renick
qualified as a VFOSC was erroneous. Had the court not scored the three probation
5 violations for a VFOSC, Renick would have only scored fifteen points in that
section, resulting in a total of 147 sentencing points and making the lowest
permissible prison sentence 89.25 months. Renick’s lowest permissible sentence
under a properly calculated scoresheet, if the trial court had elected to give the lower
sentence, would have been approximately sixteen months less than the sentence
imposed.
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SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________
Case No. 6D2023-2329 Lower Tribunal No. 2014-CF-004335 _____________________________
CHRISTOPHER MARCH RENICK,
Petitioner,
v.
STATE OF FLORIDA,
Respondent. _____________________________
Petition Alleging Ineffective Assistance of Counsel. A Case of Original Jurisdiction.
April 17, 2025
PER CURIAM.
Christopher Renick seeks a writ of habeas corpus, alleging ineffective
assistance of appellate counsel pursuant to Florida Rule of Appellate Procedure
9.141(d). Renick argues that his appellate counsel was ineffective for failing to file
a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) during the
appeal of his probation violation sentence. He claims appellate counsel should have
alleged that his sentence was illegal because: (1) Renick was not present when the
sentence was pronounced; (2) no scoresheet was filed for the resentencing hearing; (3) the court relied on an earlier scoresheet that improperly added points by
incorrectly designating Renick as a violent felony offender of special concern; and
(4) his sentence was improperly enhanced when he was forced to wear a GPS
monitor.
Because we find merit in the arguments that appellate counsel was ineffective
for failing to raise the issues that Renick was sentenced under an erroneous
scoresheet and that the trial court did not pronounce sentence with Renick present,
we grant the petition in part. We deny the remainder of the petition without further
comment.
Background
Renick pleaded guilty to one count of lewd or lascivious molestation on a
person less than twelve years of age. He was adjudicated guilty, designated a sexual
predator, and sentenced to ten years of sex offender probation on October 2, 2015.
After violating his probation in 2017 and 2019,1 Renick again violated his probation
in 2021. The trial court held a violation of probation hearing and found that Renick
violated his probation and set a sentencing hearing for a later date. After conducting
a sentencing hearing, the trial court entered an order on October 15, 2021, revoking
1 In 2017, the trial court modified the probation to require Renick to serve 148 days jail with credit for 148 days and wear a GPS or electronic monitoring device. In 2019, the trial court again modified his probation to require him to serve 637 days jail with credit for 637 days served with all other conditions remaining in place.
2 Renick’s probation, and sentencing him to 105 months in prison. The order
indicated that a danger hearing was conducted and that the trial court found Renick
a danger to the community. Renick was present for this hearing.
Thereafter, defense counsel filed a motion to correct illegal sentence, arguing
that the sentence was based on the trial court’s finding that Renick was a danger to
the community as a violent felony offender of special concern (“VFOSC”), and
because the offense for which Renick was convicted occurred before the effective
date of the VFOSC statute, that finding was erroneous. The trial court held a hearing
on the matter and ultimately agreed that the VFOSC finding was erroneous, and
found that resentencing was needed because the court based Renick’s sentence on
the minimum under the VFOSC statute.
Renick was present at the November 29, 2021, resentencing hearing. At the
conclusion of testimony, defense counsel argued for a downward departure. The
State informed the trial court that the lowest permissible sentence was 105 months
in prison, and the defense did not object. It does not appear that a new scoresheet
was filed for the resentencing hearing. The court concluded the hearing without
resentencing Renick, stating, “I’ll make a ruling in chambers.” The defense did not
object to that statement either.
On December 9, 2021, the court entered a written “Order Granting Motion to
Correct Illegal Sentence and Conduct Resentencing.” The order vacated the prior
3 sentence, stated that the trial court found no mitigating circumstances for a
downward departure, and resentenced Renick “to the lowest permissible prison
[sentence] of 105 months.” On December 10, 2021, the court entered a probation
revocation order detailing Renick’s sentence of 105 months in prison, nunc pro tunc
to October 15, 2021.
On December 8, 2021, Renick, through counsel, filed a notice of appeal. On
appeal, counsel raised one issue—whether the trial court erred in finding that Renick
violated his probation and in sentencing him to prison. The Fifth District Court of
Appeal per curiam affirmed the judgment and sentence on October 18, 2022. See
Renick v. State, 350 So. 3d 1270 (Fla. 5th DCA 2022) (table decision). Thereafter,
Renick, pro se, filed the instant habeas petition.
Analysis
The standard of review to determine if a petitioner received ineffective
assistance of appellate counsel mirrors the Strickland standard. Jones v. Moore, 749
So. 2d 579, 583 (Fla. 2001) (referencing Strickland v. Washington, 466 U.S. 688
(1984)). As such, a habeas petitioner must show both:
1. Specific errors or omissions which show that appellate counsel’s performance deviated from the norm or fell outside the range of professionally acceptable performance and
4 2. The deficiency of that performance compromised the appellate process to such a degree as to undermine confidence in the fairness and correctness of the appellate result.
Downs v. Moore, 801 So. 2d 906, 909-10 (Fla. 2001). “While the failure to raise
unpreserved claims on appeal is not normally a basis for ineffective assistance of
appellate counsel, the failure to raise unpreserved claims of fundamental error may
be.” Davis v. State, 383 So. 3d 717, 742 (Fla. 2024). A claim that counsel was
ineffective for failing to file a rule 3.800(b)(2) motion is cognizable in a petition
alleging ineffective assistance of appellate counsel. See Fortner v. State, 23 So. 3d
1275, 1276 (Fla. 2d DCA 2010).
Scoresheet Error
Renick claims that appellate counsel was ineffective for failing to raise a
scoresheet error in a motion pursuant to rule 3.800(b)(2). A defendant can raise a
claim of scoresheet error under rule 3.800(b)(2) during the pendency of the appeal.
State v. Anderson, 905 So. 2d 111, 118 (Fla. 2005).
The trial court used the Criminal Punishment Code Scoresheet dated October
15, 2021, to resentence Renick. That scoresheet shows that Renick scored 168
points, which resulted in a lowest permissible sentence of 105 months in prison.
However, the scoresheet incorrectly included 36 points for violation of probation as
a VFOSC and the trial court had previously determined that its finding that Renick
qualified as a VFOSC was erroneous. Had the court not scored the three probation
5 violations for a VFOSC, Renick would have only scored fifteen points in that
section, resulting in a total of 147 sentencing points and making the lowest
permissible prison sentence 89.25 months. Renick’s lowest permissible sentence
under a properly calculated scoresheet, if the trial court had elected to give the lower
sentence, would have been approximately sixteen months less than the sentence
imposed.
For scoresheet errors, the test is whether the trial court would have imposed
the same sentence with a correct scoresheet. Ray v. State, 987 So. 2d 155, 156 (Fla.
1st DCA 2008) (A “scoresheet error is considered harmless if the record
conclusively shows that the trial court would have imposed the same sentence using
a correct scoresheet.”). In Renick’s case, based on the trial court’s consideration of
a downward departure and its ultimate sentence of exactly the lowest permissible
sentence, it is possible the trial court would have imposed a lower sentence with a
properly calculated scoresheet. Therefore, we cannot say that the trial court would
have imposed the same 105-month sentence with a corrected scoresheet.
Right to be Present for Resentencing
A defendant’s right to be present when the court pronounces sentence has been
codified in Florida Rule of Criminal Procedure 3.180(a), which states “[i]n all
prosecutions for crime the defendant must be present . . . at the pronouncement of
judgment and the imposition of sentence.” Fla. R. Crim. P. 3.180(a)(9). A
6 defendant’s right to be present at sentencing is rooted in the “‘requirement that all
proceedings affecting life, liberty, or property must be conducted according to due
process,’ which includes a ‘reasonable opportunity to be heard.’” Dunbar v. State,
89 So. 3d 901, 907 (Fla. 2012) (citations omitted) (quoting Jackson v. State, 767 So.
2d 1156, 1159 (Fla. 2000)). “[A] defendant’s ‘right to be present extends to the
hearing where her sentence will be reconsidered’ because sentencing is ‘a critical
stage of every criminal proceeding.’” Id. (quoting Jackson, 767 So. 2d at 1160).
Therefore, “[a] defendant’s absence at resentencing constitutes reversible error
regardless of a defendant’s opportunity to present additional evidence.” Id. Renick
had a due process right to be present for resentencing.
However, a violation of the right to be present at sentencing is “subject to a
harmless error analysis and the proceeding will only be reversed on this basis if
‘fundamental fairness has been thwarted.’” Smithers v. State, 826 So. 2d 916, 927
(Fla. 2002) (quoting Kearse v. State, 770 So. 2d 1119, 1124 (Fla. 2000)). Courts
have held that any error in the failure to be present is harmless if the resentencing is
a ministerial act. Jordan v. State, 143 So. 3d 335, 338-39 (Fla. 2014) (first citing
Orta v. State, 919 So. 2d 602, 604 (Fla. 3d DCA 2006); and then citing Acosta v.
State, 46 So. 3d 1179, 1180 (Fla. 2d DCA 2010)). But if a judge has discretion as
to the new sentence, it is not a ministerial act, and the defendant is required to be
present. Id.; see also Mullins v. State, 997 So. 2d 443, 445 (Fla. 3d DCA 2008) (“A
7 defendant will receive a new sentencing hearing if the resentencing involves
additional consideration or sentencing discretion, not if the act to be done is
ministerial in nature, such as striking an improper portion of the sentence.”).
Although subject to a harmless error standard, Renick’s appellate counsel
could have preserved the issue of Renick not being present for resentencing for the
first time on appeal by raising it in a rule 3.800(b)(2) motion. See Thomas v. State,
286 So. 3d 884, 886 (Fla. 2d DCA 2019); Darwin v. State, 259 So. 3d 260, 261 (Fla.
2d DCA 2018) (considering claim of violation of right to be present raised in a rule
3.800(b)(2) motion). Although the same 105-month term was ultimately imposed,
the trial court did have discretion, making the resentencing more than just a
ministerial act. Had appellate counsel raised this issue, Renick would have been
entitled to relief—particularly since a scoresheet error was present. See Rivers v.
State, 980 So. 2d 599, 600-01 (Fla. 2d DCA 2008) (“Our review of the record shows
that the resentencing proceeding in this case was not purely ministerial and that
Rivers was entitled to be present at the hearing.”).
Conclusion
The trial court’s errors in failing to pronounce Renick’s sentence orally with
him present and sentencing him based on an erroneous scoresheet “undermine
confidence in the fairness and correctness of the appellate result.” Jones v. Moore,
749 So. 2d at 583. Had appellate counsel raised these issues, Renick would have
8 been entitled to relief. Accordingly, we grant the petition in part as to these two
claims. However, instead of granting a new appeal, we remand to the trial court for
resentencing with a corrected scoresheet and with Renick present. See Agosto-
Molina v. State, 933 So. 2d 26, 28 (Fla. 2d DCA 2006) (where granting a new appeal
based on a meritorious petition alleging ineffective assistance of appellate counsel
would be redundant, it is appropriate to remand to the trial court for resentencing);
see also Fortner, 23 So. 3d at 1276.
GRANTED in part and REMANDED and DENIED in part.
STARGEL, WHITE and GANNAM, JJ., concur.
Christopher March Renick, Crestview, pro se.
James Uthmeier, Attorney General, Tallahassee, and Marissa V. Giles, Assistant Attorney General, Daytona Beach, for Respondent.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED