Bain v. State 919 So. 2d 599

CORTIÑAS, Judge.

The defendant, Franklin W. Bain, appeals from a final judgment revoking his probation and sentencing him to 11.36 years in prison, the maximum sentence under the guidelines.

In 1998, the defendant pled guilty to child abuse and admitted to a violation of probation in another case in exchange for probation. In 1999, the defendant was convicted of a new crime on two counts of aggravated assault with a firearm, and this court affirmed those convictions. See Bain v. State, 30 Fla. L. Weekly D604, — So.2d -, 2005 WL 475416 (Fla. 3d DCA Mar.2, 2005).

Following the defendant’s conviction on the aggravated assault, the trial court conducted a violation of probation hearing together with the sentencing hearing in the aggravated assault case. The trial court found the defendant in violation of probation and imposed a sentence of 13.9 years, which was twenty-five percent (25%) above the recommended sentence and represented the maximum sentence within the guideline range. This sentence was to run concurrently with the fifteen-year sentence imposed for the underlying assault offenses.

The defendant filed a motion to correct his sentence pending appeal based on a scoring error in calculating the defendant’s guideline sentence. A successor judge resolved the scoring error, and, after learning that the predecessor judge imposed the maximum sentence, sentenced the defendant to 11.36 years in prison under the recalculated scoresheet. The new sentence was a twenty-five percent (25%) increase from the recommended sentence, and also represented the maximum sentence allowed under the applicable guideline range.

The defendant argues and the State concedes that the record does not support a finding that the successor judge’s sentencing decision was based on his independent evaluation of the case. See Fla. R.Crim. P. 3.700(c); Spencer v. State, 611 So.2d 16 (Fla. 3d DCA 1992); Watson v. State, 820 So.2d 1057 (Fla. 4th DCA 2002). Based on the State’s confession of error and our independent review of the record, we remand the case for a new sentencing hearing to provide the judge with an opportunity to clarify the record and make the requisite findings.

The dissent incorrectly characterizes our task as “wheel-spinning” because it presumes that the “trial judge would simply confirm on the record that the sentencing decision was his own.” While that may be the case, we do not take so lightly a confession of error by the State. This is not a case where the State has confessed error based on a misunderstanding of the proper legal standard. See KAC. v. State, 707 So.2d 1175 (Fla. 3d DCA 1998). Instead, the State has confessed error after a thorough review of the record and has conceded that the case should be remanded to *601allow the trial judge to clarify precisely what he reviewed before imposing sentence. The dissent would disregard the State’s confession of error simply because the trial judge stated that he “reviewed everything that was provided to me by both sides.” Respectfully, this is insufficient for appellate review as we must be able to “discern precisely what the successor judge reviewed in this case.” Watson v. State, 820 So.2d at 1058. Because we cannot do this, the State’s confession of error was proper and we remand for a new sentencing hearing.

We affirm on all other issues raised in this appeal. Affirmed in part, reversed in part, and remanded.

COPE, C.J.

(concurring in part and dissenting in part).

Respectfully, we should affirm the sentencing order and reject the State’s confession of error.

The case now before us is an appeal after revocation of probation in Miami-Dade County Circuit Court case number 98-29538. Defendant-appellant Bain filed a motion to correct sentencing error pending appeal. This motion fell before a successor judge who conducted several hearings on that matter and another of the defendant’s pending cases.

When this case came before the successor judge for resentencing on a corrected sentencing guidelines scoresheet, the judge made reference to the fact that the predecessor judge had sentenced the defendant to the maximum. The court then sentenced the defendant to the (lower) guidelines maximum under the corrected scoresheet. If that is all that existed in the case, I would agree that we would need to return the case to the trial court to confirm that the successor judge exercised his own independent sentencing judgment.

However, there is more. Later in the same hearing defense counsel asked to “clarify something for the record regarding the 1998 sentence that you imposed earlier today.” Supplemental Record (“SR.”) 70. Counsel stated that she wanted to make clear that she was not waiving any of her previously made arguments regarding the duties of a successor judge. SR. 71. The court then responded: “As far as my understanding is that I have to conduct an independent review of the facts in the case that I feel are necessary to make a sentence.” Id. (emphasis added).

Defense counsel stated that she wanted to be sure about what the judge had reviewed. Id. The court responded: “I have reviewed everything that was provided to me by both sides.” SR. 72 (emphasis added).

Defense counsel asked whether that included a paragraph from a transcript contained in the 1998 case. Id. This apparently was not in the materials that had been provided to the judge. Id. at 72-73. The court had the public defender read the paragraph into the record. Id. at 73. The gist was that the defendant’s trial counsel in the 1998 case believed that Mr. Bain could have won the case had he gone to trial. However, the defendant insisted on taking a plea in the 1998 case so that he could get out of jail.

Defense counsel in the present case concluded by saying, “I really just wanted to be sure that it was clear on the record that I hadn’t waived all of those arguments because I didn’t reiterate them at the time that the Court pronounced sentence.” Id. at 74. The court replied, “OK. Well we have it on the record now you should be alright.” SR. 74.

Based on the foregoing, it is clear that the trial court understood and applied the correct legal standard, and reviewed ev*602erything which he had been provided by both sides. If we send this back, we are simply wheel-spinning. Plainly the trial judge would simply confirm on the record that the sentencing decision was his own, after review of the record.

Under this court’s precedent, we are not obligated to accept the State’s confession of error. “A confession of error ... is not binding upon an appellate court, and it is the practice of Florida appellate courts not to accept erroneous concessions by the State.” Perry v. State, 808 So.2d 268 (Fla. 1st DCA 2002) (citations omitted); Santiago v. State, 669 So.2d 334, 335 (Fla. 3d DCA 1996). We should affirm instead of reversing for a new sentencing hearing.

I concur with the majority in rejecting the defense argument regarding the interpretation of the sentencing guidelines.1 Under the applicable version of the guidelines, a calculation is performed which produces a recommended number of state prison months. See § 921.0014, Fla. Stat. (1997).2 The statute provides, “The recommended sentence length in state prison months may be increased by up to, and including, 25 percent or decreased by up to, and including, 25 percent, at the discretion of the court.” Id. § 921.0014. The statute goes on to say, “A trial court judge may impose a state prison sentence which varies upward or downward by up to, and including, 25 percent from the recommended guidelines state prison sentence without issuing a written statement delineating the reasons for the variation.” Id. § 921.0016.

The defendant maintains that the only recommended sentence under the guidelines is the single figure representing the calculation of state prison months under section 921.0014. The defendant argues that if the trial court exercises its discretion to increase or decrease the sentence by twenty-five percent, then this amounts to a departure sentence which is reviewable by us regarding the sufficiency of the record to support the sentence imposed.

The defendant’s argument is incorrect. The guidelines create a range of recommended sentence length, from twenty-five percent below the state prison months calculation to twenty-five percent above the state prison months calculation. The sentencing judge may select any sentence within that range. See Wick v. State, 651 So.2d 765, 766 (Fla. 3d DCA 1995) (addressing “guidelines sentence” under previous sentencing guidelines). So long as the sentence is within that range, it does not constitute a departure sentence subject to review by us.