Marcus Upshaw v. State

         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                              NOT FINAL UNTIL TIME EXPIRES TO
                                              FILE MOTION FOR REHEARING AND
                                              DISPOSITION THEREOF IF FILED


MARCUS A. UPSHAW,

             Appellant,

 v.                                                  Case No. 5D17-3717

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed June 22, 2018

3.800 Appeal from the Circuit
Court for Lake County,
Lawrence J. Semento, Judge.

Marcus A. Upshaw, Jasper, pro se.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Robin A. Compton,
Assistant Attorney General, Daytona
Beach, for Appellee.


PER CURIAM.

      Marcus Upshaw appeals the summary denial of his motion to correct illegal

sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a).   The State

properly concedes that one of the issues raised by Upshaw has merit.

      In June 2015, Upshaw entered a nolo contendere plea on Count I in case number

2014-CF-002517 to felony petit theft, a third-degree felony. Upshaw was sentenced to
six years in prison on that count, the lowest permissible sentence as reflected on his

scoresheet.    However, as the State acknowledges, the scoresheet was erroneous

because it improperly used Upshaw’s 2010 aggravated assault with a deadly weapon

conviction as the primary offense, rather than as a prior offense. Because a properly

calculated scoresheet would yield a lowest permissible sentence on this charge of less

than five years, the trial court was precluded from imposing a sentence greater than the

five-year statutory maximum. Accordingly, on remand, the trial court is directed to vacate

the sentence imposed on Upshaw’s felony petit theft conviction in case number 2014-CF-

002517 and to resentence him. We find the other issues raised by Upshaw to be without

merit.

         AFFIRMED, in part; REVERSED, in part; and REMANDED.



COHEN, C.J. and ORFINGER and EVANDER, JJ., concur.




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