DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

TERRY MOORE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-3462

[March 13, 2019]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Timothy L. Bailey, Judge; L.T. Case No. 09-021764-CF10A.

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

Public Defender, West Palm Beach, for appellant.

Ashley B. Moody, Attorney General, Tallahassee, and Alexandra A. 

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

CONNER, J.

Appellant, Terry Moore, appeals the trial court’s order revoking his 

probation and imposing sentence, contending the trial court erred by: (1) 

finding that the State’s discovery violation was not prejudicial to the 

defense; (2) considering his alleged lack of remorse when sentencing; and 

(3) imposing a sentence based on an erroneous scoresheet and an 

improper determination that he qualified for sentencing as a violent felony 

offender of special concern (“VFOSC”), where the statutory provisions 

applicable for sentencing such offenders were not followed. We affirm the 

trial court’s decision about the discovery violation without discussion. We 

also affirm the sentencing issue regarding Appellant’s alleged lack of 

remorse without discussion. See Peters v. State, 128 So. 3d 832, 848 (Fla. 

4th DCA 2013) (determining that consideration of remorse is appropriate 

when the defendant injects the issue of rehabilitation into the case by 

arguing that after years in prison he has been rehabilitated).

As discussed below, the State concedes error regarding the scoresheet 

and Appellant’s entitlement to resentencing, but disagrees with Appellant’s 
2

argument that the trial court cannot resentence him as a VFOSC on 

remand. The State further argues that the trial court’s written order 

determining that Appellant violated probation does not comport with the 

trial court’s oral pronouncement at the conclusion of the violation of 

probation hearing. We agree with the State’s arguments and reverse the 

trial court’s written order determining a violation of probation and the 

sentence imposed thereafter. We remand the case for entry of a written 

order revoking probation that conforms to the oral pronouncement and for 

resentencing using a corrected scoresheet. We further direct the trial court 

to comply with the statutory provisions for sentencing Appellant as a 

VFOSC.

Background

Appellant was convicted of second degree murder and sentenced to six 

years in prison, followed by five years of probation. While Appellant was 

on probation, an affidavit of violation of probation was filed, alleging 

Appellant violated probation by traveling to another county without 

procuring the consent of his probation officer and by committing a criminal 

trespass in Leon County. After a violation hearing, the trial court orally 

pronounced its finding that Appellant willfully and substantially violated 

probation as alleged in the violation affidavit. The trial court sentenced 

Appellant to 279.45 months in prison, the lowest permissible sentence 

according to his scoresheet, followed by five years of probation. Appellant 

gave notice of appeal. 

While the appeal was pending, Appellant filed a rule 3.800(b)(2) motion, 

arguing that his “scoresheet included 12 points, rather than 6 points” 

because he was listed as a VFOSC, but the trial court failed to hold a 

hearing or make written findings regarding Appellant’s status as a VFOSC. 

The State responded, arguing that the motion should be denied because: 

(1) the argument raised “is not cognizable under” rule 3.800(b)(2); and (2) 

on the merits, Appellant qualified as a VFOSC regardless of any findings. 

The trial court denied Appellant’s motion, citing to the reasons in the 

State’s response. 

Appellant filed a subsequent rule 3.800(b)(2) motion, arguing that the 

record did not contain a written order revoking Appellant’s probation. 

After Appellant filed his initial brief, the State responded, agreeing that 

there was no such written order in the record. However, after Appellant 

filed his initial brief, the trial court entered an order granting Appellant’s 

motion, stating its finding that Appellant willfully and substantially 

violated his probation by leaving the county without his probation officer’s 

consent. The written order did not conform to the oral pronouncement at 
3

the conclusion of the violation hearing where the trial court additionally 

found Appellant violated probation by committing a trespass.

Appellate Analysis

Appellant argues that the trial court erred in imposing a sentence based 

on an improper scoresheet. “Because Appellant’s argument concerning 

his scoresheet presents a pure issue of law, we apply the de novo standard 

of review.” Somps v. State, 183 So. 3d 1090, 1092 (Fla. 4th DCA 2015).

Appellant argues that the trial court did not follow the statutory 

procedure in sentencing him as a VFOSC, where the State did not request 

a VFOSC designation and the trial court did not orally pronounce a finding 

that he qualified for the designation. Additionally, Appellant points out 

that the trial court did not conduct a danger hearing pursuant to section 

948.06(8), Florida Statutes (2009), or make any written findings that 

Appellant is or is not a danger to the community. Appellant argues that 

the scoresheet used for sentencing improperly included twelve points for a 

community sanction violation by a VFOSC. Appellant asks us to reverse 

and remand for a new sentencing hearing where he cannot be designated 

as a VFOSC. Although no objection to the scoresheet was made during 

the sentencing hearing, the issue was preserved by Appellant’s Florida 

Rule of Criminal Procedure 3.800(b)(2) motion. See Arnone v. State, 204 

So. 3d 556, 557 (Fla. 4th DCA 2016) (finding the defendant preserved his 

arguments on appeal as to the VFOSC finding by filing a rule 3.800(b)(2) 

motion).

As discussed more fully below, the State concedes that the scoresheet 

used by the trial court assessed too many total points and that Appellant 

is entitled to a new sentencing hearing with a corrected scoresheet. 

However, the State contends that upon resentencing, the trial court is not 

foreclosed from treating Appellant as a VFOSC.

The scoresheet used at sentencing calculated that Appellant scored

400.6 points. It contained subsection VI, a community sanction violation 

section, filled out as follows: 
4

(arrows added). As the State concedes, the “box” for 12 points for VFOSC 

is checked (left arrow), but argues that there were no additional points 

actually added for subsection VI (right arrow). The State concedes error 

though, because the calculation of the total scoresheet points is incorrect. 

The scoresheet states that the total points add up to 400.6 points, but the 

numbered subsections of the scoresheet list the following subtotal of 

points: (1) 116, (2) 0, (3) 240, (4) 30.6, (5) 4, and (6) 0. These subtotals 

add up to a total of 390.6 points, not 400.6 points as stated on the 

scoresheet. 

We agree with the State that Appellant is entitled to a new sentencing 

hearing with a corrected scoresheet. As the State concedes, because the

trial court sentenced Appellant to the lowest permissible sentence, he is 

entitled to resentencing as it cannot be said that the same sentence would 

have been imposed despite the scoresheet error. State v. Anderson, 905 

So. 2d 111, 118 (Fla. 2005) (explaining the “would-have-been-imposed” 

test to determine whether a scoresheet error affected sentencing and if the 

record does not conclusively establish that the trial court would have 

imposed the same sentence despite the scoresheet error, remand for 

sentencing is required).

We also agree with the State that the trial court is not foreclosed from 

resentencing Appellant as a VFOSC. Appellant’s arguments on appeal 

conflate his status as a VFOSC with the ability of the State to demand 

mandatory revocation of his probation by having him declared a danger to 

the community as a VFOSC. Appellant’s arguments in this case are 

similar to the defendant’s arguments in Whittaker v. State, 223 So. 3d 270 

(Fla. 4th DCA 2017). There, the defendant argued that he should have 

been given six points on his scoresheet instead of twelve as a VFOSC 

because the trial court did not follow the statutory procedure under 

section 948.06(8), Florida Statutes, and also argued this Court should 

“reverse his sentence and remand for a new sentencing hearing where he 

cannot be designated as a VFOSC.” Id. at 272-73. Similar to this case, 

the State agreed the defendant was entitled to a new sentencing hearing, 

but disagreed with the relief on remand. Id. at 273. In Whittaker we said:

[B]ecause a defendant’s designation as a VFOSC does not 

depend on a finding that the defendant poses a danger to the 

community, a trial court’s failure to make written findings 

under section 948.06(8)(e) as to whether a defendant poses a 

danger to the community does not entitle the defendant to 

have the VFOSC designation stricken.

Id. at 274. Additionally, we stated:
5

A trial court’s finding under section 948.06(8)(e) as to whether 

a defendant who qualifies as a VFOSC poses a danger to the 

community is significant because it determines whether 

revocation of probation is mandatory or discretionary. 

§ 948.06(8)(e) 2., Fla. Stat. (2015). However, because a 

guidelines sentence “would be legal irrespective of the findings 

made pursuant to section 948.06(8)(e),” a trial court’s failure 

to make the mandated written findings under section 

948.06(8)(e) does not necessitate reinstatement of the 

defendant’s probation. See Barber[ v. State, 207 So. 3d 379, 

383-85 (Fla. 5th DCA 2016)]. Rather, “the proper remedy is 

to reverse the sentencing order and remand for another 

sentencing hearing with directions that the trial court make 

the necessary written findings under section 948.06(8)(e) 

when imposing its sentence.” Id. at 385.

Id. at 274-75.

The same principles apply to this case. It is clear that Appellant 

qualifies as a VFOSC. Section 948.06(8) defines a VFOSC, in part, as “a 

person who is on . . . [f]elony probation or community control related to 

the commission of a qualifying offense committed on or after the effective 

date of this act.” § 948.06(8)(b)1., Fla. Stat. (2009). Under the list of 

enumerated “qualifying offenses” is murder. § 948.06(8)(c)2., Fla. Stat. 

(2009). Since Appellant was on probation for murder, he therefore meets 

the statutory requirements. 

We reverse the sentence imposed in this case and remand for 

resentencing with a properly calculated scoresheet. On resentencing the 

trial court shall comply with the provisions of section 948.06(8). 

Additionally, the written order revoking probation and stating the 

conditions of probation the trial court found Appellant violated did not 

match the oral pronouncement made during the violation hearing. We 

direct the trial court to vacate the order revoking probation and enter a 

new written order that conforms to the oral pronouncement of which 

conditions of probation it found Appellant violated. See Hernandez v. 

State, 254 So. 3d 1091, 1092 (Fla. 3d DCA 2018) (remanding to the trial 

court “for correction of the written order for revocation so that it conforms

to the trial court’s oral pronouncement”). 

Affirmed in part, reversed in part, and remanded with instructions.

GROSS and FORST, JJ., concur.
6

* * *

Not final until disposition of timely filed motion for rehearing.