DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JONATHAN SOMPS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D13-3083

[May 27, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Bernard Bober, Judge; L.T. Case Nos. 10-19032 CF10A 

and 10-19787 CF10A.

Carey Haughwout, Public Defender, and Mara C. Herbert, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Catherine 

Linton, Assistant Attorney General, West Palm Beach, for appellee.

DAMOORGIAN, C.J.,

Jonathan Somps appeals the trial court’s orders revoking his 

probation in two separate cases. We affirm in part, reverse in part, and 

remand for resentencing.

By way of background, Appellant was arrested and charged with one 

count of grand theft and one count of resisting an officer without 

violence. He was also arrested and charged in a separate case with one 

count of grand theft auto, one count of leaving the scene of a crash with 

personal injuries, one count of petit theft, and one count of resisting an 

officer without violence. Appellant negotiated a plea in both cases and 

was sentenced to concurrent five-year probation sentences for grand 

theft, grand theft auto, and leaving the scene of a crash with personal 

injuries. The court sentenced Appellant to time served for petit theft and 

the two counts of resisting an officer without violence.1

 

1 Time served amounted to five days in one case and eleven days in the 

other.
2

Three months later, the state charged Appellant with violating several 

conditions of his probation. After a violation of probation (“VOP”) 

hearing, the trial court revoked Appellant’s probation. During 

sentencing, the trial court scored leaving the scene of an accident with 

personal injuries as the primary offense on Appellant’s scoresheet and 

the remaining offenses scored as additional offenses. There was some 

discrepancy as to the amount of jail credit Appellant was entitled to, but 

Appellant ultimately agreed to credit for 538 days. Although Appellant’s 

lowest permissible sentence was 13.05 months, the trial court imposed

concurrent 48-month prison terms with credit for 538 days served. This 

appeal follows.

On appeal, Appellant maintains that the trial court erred by: (1) 

revoking his probation based on a ground not alleged in the affidavit; (2) 

considering impermissible factors during sentencing; (3) failing to award 

him full jail credit, and (4) scoring three misdemeanor charges as 

additional offenses on his scoresheet. We affirm on the first three issues 

without further discussion. However, we find merit in Appellant’s 

argument concerning his scoresheet and, therefore, reverse and remand 

for resentencing.

Because Appellant’s argument concerning his scoresheet presents a 

pure issue of law, we apply the de novo standard of review. Sanders v. 

State, 35 So. 3d 864, 868 (Fla. 2010).

Appellant argues that the trial court erred in scoring his charges for 

petit theft and two counts of resisting an officer without violence as 

additional offenses because the charges were not pending before the 

court for sentencing following his VOP. We agree.

A defendant’s scoresheet sets forth the permissible range for the 

sentence a court may impose. See § 921.0024(3), Fla. Stat. (2010). It 

“must cover all the defendant’s offenses pending before the court for 

sentencing.” § 921.0024(3) Fla. Stat. A defendant is assigned points for 

the primary offense and for any additional offenses. § 921.0024(1)(a), 

Fla. Stat. A primary offense is “the offense at conviction pending before 

the court for sentencing for which the total sentence points recommend a 

sanction that is as severe as, or more severe than, the sanction 

recommended for any other offense committed by the offender and 

pending before the court at sentencing.” § 921.0021(4), Fla. Stat. An 

additional offense is “any offense other than the primary offense for 

which an offender is convicted and which is pending before the court for 

sentencing at the time of the primary offense.” § 921.0021(1), Fla. Stat. 
3

An offense should not be scored as an additional offense following the 

revocation of a defendant’s probation if the defendant completed his 

sentence as to that offense before the VOP occurred. See Sanders, 35 So. 

3d at 869 (defendant’s third-degree felonies were not properly scored as 

additional offenses following the revocation of his probation because 

defendant completed probation as to the third-degree felonies before the 

VOP).

Here, Appellant was originally sentenced to concurrent probation 

terms in his two underlying cases. In the first case, the court imposed 

five years of probation for grand theft and time served for resisting an 

officer without violence. In the second case, the court imposed five years 

of probation for both grand theft auto and leaving the scene of an 

accident with injuries and time served for petit theft and resisting an 

officer without violence. Upon the revocation of Appellant’s probation, 

Appellant’s scoresheet listed leaving the scene of an accident with 

injuries as the primary offense and the remaining charges as additional

offenses. This was error. Appellant completed his sentence for petit theft 

and two counts of resisting an officer without violence before the VOP 

occurred. Thus, those three offenses were not pending before the court 

for sentencing and were erroneously scored as additional offenses on 

Appellant’s scoresheet following the revocation of his probation. See id.

“When a scoresheet error is challenged on direct appeal, via a motion 

under Florida Rule of Criminal Procedure 3.800(b) or via a motion under 

Florida Rule of Criminal Procedure 3.850, the error ‘is harmless if the 

record conclusively shows that the trial court would have imposed the 

same sentence using a correct scoresheet.’” See id. at 870–71 (quoting 

Brooks v. State, 969 So. 2d 238, 241 (Fla. 2007)). This standard applies 

here because Appellant challenged the scoring of his misdemeanor 

offenses in a rule 3.800(b) motion and argued the point on direct appeal.

In Sanders, the scoresheet error was harmful because the lowest 

permissible sentence was reduced by almost two years on the corrected 

scoresheet and the record showed that the trial judge heavily relied on 

the lowest permissible sentence when formulating the defendant’s 

sentence. Id. at 871–72. Here, the difference between the lowest 

permissible sentence utilized by the trial court and the lowest 

permissible sentence on Appellant’s corrected scoresheet is far less 

significant. Moreover, the trial court imposed a sentence well above the 

lowest permissible sentence—forty-eight months. While this certainly 

suggests that the trial court would have imposed the same sentence 

using the corrected scoresheet, the record does not conclusively establish 

that the trial court would have imposed the same sentence, had the three 
4

misdemeanor charges not been scored as additional offenses. 

Accordingly, we conclude that the error was harmful and reverse and 

remand for resentencing.

Affirmed in part, Reversed in part, and Remanded.

TAYLOR and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.