5D04-2627 William Cosby v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D04-2627

Case Date: 10/17/2005

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2005

WILLIAM D. COSBY, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed October 21, 2005. Appeal from the Circuit Court for Orange County, Frederick J. Lauten, Judge. James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee. Case No. 5D04-2627

THOMPSON, J. William Daniel Cosby timely appeals his sentence for grand theft third degree. He contends he should be resentenced because an incorrect sentencing scoresheet was used at his sentencing. We agree and reverse and remand for resentencing.

The State charged Cosby with two counts of larceny: Count I, dealing in stolen property1 and Count II, grand theft third degree.2 At the conclusion of the State's case, the trial court granted Cosby's motion for judgment of acquittal on Count I, dealing in stolen property. The jury found Cosby guilty of Count II, grand theft third degree.

Cosby's sentencing scoresheet showed 59 points. The trial court sentenced Cosby to four years' incarceration, consecutive to any other offense he was serving. Unfortunately, the scoresheet submitted to the judge indicated that the primary offense was dealing in stolen property, a level 5 offense scoring 28 points. Grand theft third degree is only a level 2 offense, scoring 10 points. As a result, Cosby's score was incorrect by 19.2 points. The incorrect scoresheet indicated that Cosby's lowest

permissible prison sentence was 23.25 months. Under a corrected scoresheet, Cosby would have been entitled to any non-state prison sanction. At sentencing, Cosby's defense counsel did not offer any additions, corrections, or revisions to the 59 points on the scoresheet. The court sentenced Cosby to four years' incarceration and ordered restitution and payment of court costs and fees. After the court ordered the sentence to be served consecutive to other sentences being served, Cosby pointed out that he was already serving three consecutive sentences of three years each for other convictions. The trial court reaffirmed its ruling. Pursuant to Florida Rule of Criminal Procedure 3.800(b), Cosby moved to correct sentence based on the incorrect scoresheet. The court heard and denied the motion. Cosby appeals from this decision.

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