Opinion
No. 4D04-4738.
June 8, 2005.
Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County, Alfred J. Horowitz, Judge, L.T. Case No. 98-20620 CF10B.
Ronnie Kennedy, East Palatka, pro se.
Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
Appellant, Ronnie Kennedy, challenges the trial court's denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court denied him relief stating that his motion was successive. We reverse because the sentencing judge incorrectly calculated the level of his offense when calculating his sentencing guideline scoresheet.
Kennedy pled guilty to trafficking in cocaine in excess of 400 grams and less than 150 kilograms and conspiracy to traffic in cocaine. He was sentenced to 75.7 months in prison. The court identified his trafficking in cocaine offense level as level nine and his conspiracy offense level as level eight. Kennedy argues that his conspiracy offense was incorrectly scored as a level 8 offense on his sentencing guideline scoresheet because it is an unlisted first degree felony, which should be classified as a level 7 offense. See Preston v. State, 667 So.2d 939 (Fla. 2nd DCA 1996).
The State disagreed with Kennedy's argument and relied on the provisions of section 893.135(5), Florida Statutes (1998), which make conspiracies to traffic in illegal drugs equal in severity to the trafficking offenses themselves. Consequently, the State determined that Kennedy's conspiracy offense should be scored at level 9, the same offense level as his substantive offense.
Penal statutes should be construed in favor of the accused and against the prosecuting agency. See Preston, 667 So.2d at 939. For that reason, we hold that the clear reading of section 921.0013 requires that unlisted first degree felonies are to be classified as level seven offenses.
Additionally, the State argues that Kennedy previously filed a rule 3.850 motion in the lower court. However, he has not previously raised this issue in this court. Therefore, we determine that a manifest injustice would result if he is denied relief. See State v. McBride, 848 So.2d 287, 291-92 (Fla 2003).
The other claims advanced by Kennedy regarding his sentencing scoresheet are without merit.
Affirmed in part, reversed in part, and remanded for resentencing on the conspiracy offense to score it as a level seven offense.
Polen, Shahood and HAZOURI, JJ., concur.
Not final until disposition of timely filed motion for rehearing.