Clark v. State

District Court of Appeal of Florida

Clark v. State

891 So. 2d 1199, 2005 Fla. App. LEXIS 942, 2005 WL 236043

CourtDistrict Court of Appeal of Florida

DecidedFebruary 2, 2005

DocketNo. 4D02-3277

StatusPublished

This text of 891 So. 2d 1199 (Clark v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Clark v. State, 891 So. 2d 1199, 2005 Fla. App. LEXIS 942, 2005 WL 236043 (Fla. Ct. App. 2005).

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Opinion

POLEN, J.

Appellant, Rommel Clark, has timely appealed a final judgment of guilt on the charge of possession of cocaine, arguing the circumstantial evidence was insufficient as a matter of law to show constructive possession. We conclude otherwise, and find that there was sufficient evidence to submit this case to the jury. See L.R.W. v. State, 848 So.2d 1263, 1266 (Fla. 5th DCA 2003) (“If there is room for a [1200]*1200difference of opinion between reasonable men with respect to the proof of facts from which an ultimate fact is sought to be established, or if there is room for such differences with respect to an inference which might be drawn from conceded facts, the court should submit the case to the finder of fact.”).

Clark also asserts that the trial court erred by denying his motion to correct sentence, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), because his score sheet was incorrectly calculated resulting in a lowest permissible sentence of 102.9 months of incarceration instead of a lowest permissible sentence of 86.85 months of incarceration. Initially, the State contested the motion arguing that Clark had waived any error, and the trial court denied Clark’s motion. On appeal, however, the State concedes that there are obvious mathematical errors which are apparent on the face of the record, which resulted in Clark receiving a sentence beyond the statutory maximum. Consequently, the State concedes, and we agree, that the trial court erred by denying Clark’s motion.

Accordingly, we affirm Clark’s conviction, but reverse his sentence and remand for resentencing in accordance with this opinion.

AFFIRMED in part, REVERSED in part.

STEVENSON and GROSS, JJ., concur.

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POLEN, J.

Appellant, Rommel Clark, has timely appealed a final judgment of guilt on the charge of possession of cocaine, arguing the circumstantial evidence was insufficient as a matter of law to show constructive possession. We conclude otherwise, and find that there was sufficient evidence to submit this case to the jury. See L.R.W. v. State, 848 So.2d 1263, 1266 (Fla. 5th DCA 2003) (“If there is room for a [1200]*1200difference of opinion between reasonable men with respect to the proof of facts from which an ultimate fact is sought to be established, or if there is room for such differences with respect to an inference which might be drawn from conceded facts, the court should submit the case to the finder of fact.”).

Clark also asserts that the trial court erred by denying his motion to correct sentence, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), because his score sheet was incorrectly calculated resulting in a lowest permissible sentence of 102.9 months of incarceration instead of a lowest permissible sentence of 86.85 months of incarceration. Initially, the State contested the motion arguing that Clark had waived any error, and the trial court denied Clark’s motion. On appeal, however, the State concedes that there are obvious mathematical errors which are apparent on the face of the record, which resulted in Clark receiving a sentence beyond the statutory maximum. Consequently, the State concedes, and we agree, that the trial court erred by denying Clark’s motion.

Accordingly, we affirm Clark’s conviction, but reverse his sentence and remand for resentencing in accordance with this opinion.

AFFIRMED in part, REVERSED in part.

STEVENSON and GROSS, JJ., concur.

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891 So. 2d 1199, 2005 Fla. App. LEXIS 942, 2005 WL 236043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-state-fladistctapp-2005.

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