NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

RONALD EUGENE TYNER, ) ) Appellant, ) ) v. ) Case No. 2D13-732 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed October 8, 2014. Appeal from the Circuit Court for Lee County; Edward J. Volz, Jr., Judge. Howard L. Dimmig, II, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee. KHOUZAM, Judge.

Ronald Eugene Tyner appeals the sentence imposed after he admi tted to violating his probation. The St ate properly concedes error, an d we reverse and remand for resentencing. In 1985, Tyner entered a no contest plea to burglary of a stru cture committed in 1979, and the trial court sentenced him to life in prison. After this court-2- twice reversed and remanded for resentencing, 1 the trial court resentenced Tyner in 1989 to twelve years' imprisonment followed by life probation u pon his election to be sentenced under the guidelines. 2 In 2013, Tyner admitted to violating his probation by committing several offenses in Indiana, and the trial court sen tenced him under the criminal punishment code to 480 months' imprisonment. In this appeal, Tyner argues and the State agrees that the tria l court erred in sentencing him under the cri minal punishment code because "[ t]he law is well-settled that following revocation of probation the trial court must use the original scoresheet

used at the time the defendant was placed on probation." Adeku nle v. State, 916 So. 2d 950, 952 (Fla. 4th DCA 2005), receded from on other grounds, Moses v. State, 13 So. 3d 490, 491-92 (Fla. 4th DCA 2009); see Yourn v. State, 652 So. 2d 1228, 1230 (Fla. 2d DCA 1995) ("Yourn was sentenced on the grand theft cha rge in 1989, therefore, the 1989 scoresheet was the appropriate one for the court to use when sentencing him for violation of probation on that charge."). T he trial court's order denying Tyner's motion to correct sentencing error under Florid a Rule of Criminal Procedure 3.800(b)(2) indicates that the court mistakenly belie ved that because Tyner's violation of probation was based on the commission of new offen ses, he was correctly sentenced under the criminal pun ishment code. But, as the Stat e notes, Tyner was not sentenced for new crimes in 2013; he was sentenced for violatin g his probation for the 1979 offense. The criminal pun ishment code only applies to off enses committed on or

1 See Tyner v. State, 536 So. 2d 1167 (Fla. 2d DCA 1988); Tyner v . State, 491 So. 2d 1228 (Fla. 2d DCA 1986).

2 This court affirmed this sentence on appeal. Tyner v. State, 5 45 So. 2d 961 (Fla. 2d DCA 1989).-3- after October 1, 1998. See § 921.002, Fla. Stat. (2013). Cons equently, Tyner should have been sentenced using the scoresheet used to originally pla ce him on probation in

1989. Accordingly, we reverse Tyner's sentence and remand for resent encing. As Tyner correctly notes, "the trial court may sentence [him] t o any period of incarceration permitted by the original guidelines range, inclu ding a one-cell increase for violation of probation, with credit for time served." Harris v . State, 771 So. 2d 565, 567 (Fla. 5th DCA 2000). Reversed and remanded for resentencing.

NORTHCUTT and LaROSE, JJ., Concur.