DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DEANGELO LAVANDER FAIN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D19-3138
[December 9, 2020]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Gary L. Sweet, Judge; L.T. Case No. 562002CF003867A.
Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley Moody, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.
FORST, J.
Appellant Deangelo Fain appeals from a resentencing hearing and order
necessitated by Graham v. Florida, 560 U.S. 48 (2010) and Miller v.
Alabama, 567 U.S. 460 (2012). Appellant asserts that the trial court
fundamentally erred in sentencing him without the benefit of a scoresheet,
and that the trial court erred in setting the date for judicial review of his
sentence. We agree with both arguments and therefore reverse and
remand for resentencing.
Background
Following a 2005 jury trial for crimes committed when he was fifteen
years old, Appellant was adjudicated guilty of attempted first-degree
murder with a firearm while wearing a mask (“Count 1”), robbery with a
firearm while wearing a mask (“Count 2”), and attempted felony murder
while mearing a mask (“Count 3”). Utilizing a scoresheet, the trial court
sentenced Appellant to concurrent thirty-year sentences on Counts 1 and
3, to run consecutive to a life sentence on Count 2. The trial court also
imposed a twenty-five-year mandatory minimum sentence on Counts 1
and 2.
Appellant thereafter appealed his judgment and sentence. In Fain v.
State, 936 So. 2d 785 (Fla. 4th DCA 2006), we held that Appellant was
improperly adjudicated guilty of both Counts 1 and 3, and we reversed and
remanded for the trial court to vacate either count. Id. On remand, the
trial court vacated Appellant’s conviction on Count 3.
More than ten years later, due to the rulings in Graham and Miller and
their subsequent codification in Florida law, Appellant filed a motion to
correct illegal sentence, requesting a resentencing hearing. The State
conceded Appellant’s entitlement to resentencing, and the matter
proceeded to a resentencing hearing in 2019.
At the resentencing hearing, the trial court pronounced its requisite
findings under section 921.1401(2), Florida Statutes (2019), holding that
Appellant’s conduct “indicate[d] the transient immaturity of youth more
persuasively than irreparable corruption.” Without the benefit of a
scoresheet, the trial court sentenced Appellant to thirty years in prison on
Count 1, and to forty-five years in prison followed by ten years of probation
on Count 2, with both counts to run concurrently. The trial court again
imposed a twenty-five-year mandatory minimum sentence on each count.
However, because of the change in juvenile sentencing law, the trial court
also provided for a sentencing review on both counts after twenty-five
years, citing to sections 775.082(3)(b)2.a. and 921.1402(2)(b), Florida
Statutes (2019). On September 6, 2019, the trial court reduced its findings
to a written sentencing order, which Appellant subsequently appealed.
Pending appeal, Appellant filed a motion to correct illegal sentence
under Florida Rule of Criminal Procedure 3.800(b)(2), alleging that his
sentence on Count 2 was illegal because a juvenile nonhomicide offense
requires sentencing review after twenty years—not twenty-five. The trial
court denied his motion. Appellant now seeks our review of both the
sentencing order and the denial of his rule 3.800(b)(2) motion.
Analysis
A. Missing Scoresheet
We review whether an error is fundamental under a de novo standard
of review. State v. Smith, 241 So. 3d 53, 55 (Fla. 2018).
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“Regardless of whether the sentence is being imposed following a trial,
entry of a plea, or pursuant to a resentencing proceeding, an accurate
scoresheet must be prepared to inform and guide the court in making its
sentencing decision.” Fernandez v. State, 199 So. 3d 500, 502 (Fla. 2d
DCA 2016) (emphasis added). Sentencing a defendant without the
consideration of a scoresheet is fundamental error that may be raised at
any time. See Cosme v. State, 111 So. 3d 280, 282–83 (Fla. 4th DCA 2013).
Further, the entry of a scoresheet applies to juvenile proceedings. See Hall
v. State, 248 So. 3d 1227, 1232 (Fla. 1st DCA 2018) (noting the utilization
of a scoresheet does not prevent a trial court from taking a juvenile’s youth
and attendant characteristics into account when imposing a sentence).
Here, the record demonstrates that the trial court resentenced
Appellant without the consideration of a scoresheet. 1 Although the State
argues this issue was not properly preserved, our precedent in Cosme
requires us to hold that the trial court’s imposition of Appellant’s sentence
without a scoresheet is fundamental error, requiring reversal.
B. Illegal Sentence
“The standard of review for a motion to correct a sentencing error is de
novo.” Terry v. State, 263 So. 3d 799, 802 (Fla. 4th DCA 2019).
A juvenile who commits a nonhomicide offense “that is a life felony or
is punishable by a term of imprisonment for life or by a term of years not
exceeding life imprisonment” and who is subsequently “sentenced to a
term of imprisonment of more than 20 years [for such nonhomicide
offense] is entitled to a review of his or her sentence in accordance with s.
921.1402(2)(d).” § 775.082(3)(c), Fla. Stat. (2019). Section 921.1402,
Florida Statutes (2019), provides that “[a] juvenile offender sentenced to a
term of 20 years or more under s. 775.082(3)(c) is entitled to a review of
his or her sentence after 20 years.” § 921.1402(2)(d), Fla. Stat. (2019). “If
the juvenile offender is not resentenced at the initial review hearing, he or
she is eligible for one subsequent review hearing 10 years after the initial
review hearing.” Id.
Here, the trial court provided for judicial review after a twenty-five-year
period on Appellant’s sentence for robbery with a firearm while wearing a
mask. However, robbery with a firearm while wearing a mask is a
nonhomicide offense constituting a “felony of the first degree, punishable
1 The only scoresheet included in the record was one created for Appellant’s
original sentencing in 2005. It assesses points for Count 3, which was
subsequently vacated.
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by imprisonment for a term of years not exceeding life.” § 812.13(2)(a),
Fla. Stat. (2019). Therefore, Appellant was entitled to a twenty-year
judicial review period under section 775.082(3)(c)—not twenty-five years.
Consequently, the trial court erred in denying his rule 3.800(b)(2) motion.
Conclusion
The trial court erred in resentencing Appellant without the benefit of a
scoresheet and in imposing a twenty-five, rather than twenty-year judicial
review period on Appellant’s nonhomicide offense. We therefore reverse
and remand for resentencing utilizing an up-to-date scoresheet.
Importantly, however, the trial court is not required to recall witnesses or
take additional testimony; it may take judicial notice of the record from
the previous sentencing hearing. Because resentencing involves the trial
court’s discretion, we note that Appellant must be present at resentencing.
See Jordan v. State, 143 So. 3d 335, 339 (Fla. 2014).
Reversed and remanded for proceedings consistent with this opinion.
DAMOORGIAN and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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