Opinion
Case No. 5D19-3705
02-07-2020
Carlos CHERIZARD, Appellant, v. STATE of Florida, Appellee.
Carlos Cherizard, Bristol, pro se. No Appearance for Appellee.
Carlos Cherizard, Bristol, pro se.
No Appearance for Appellee.
LAMBERT, J.
Carlos Cherizard appeals the postconviction court's order summarily denying his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. Cherizard argued that because his conviction for home-invasion robbery with a firearm was improperly reclassified as a life felony when he was first sentenced, he is entitled to be resentenced. As we briefly explain, we affirm the denial of Cherizard's motion, but remand only for correction of the judgment to show the proper classification for this conviction.
Cherizard was convicted after trial of home-invasion robbery with a firearm, in violation of section 812.135, Florida Statutes (2005). The trial court sentenced him to serve thirty years in prison, with a ten-year mandatory minimum provision based on the jury's verdict specifically finding that Cherizard carried, displayed, used, threatened to use, or attempted to use a firearm during the commission of this crime. The judgment also classified this conviction as a life felony. Cherizard's direct appeal of his judgment and sentences was affirmed without opinion. Cherizard v. State , 22 So. 3d 89 (Fla. 5th DCA 2009).
Cherizard was also convicted of committing other crimes, which are not pertinent here.
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Cherizard correctly argued in the instant motion that his conviction for home-invasion robbery with a firearm was improperly reclassified as a life felony, instead of the correct classification of first-degree felony punishable by up to life imprisonment. See § 812.135(2)(a) ("If in the course of committing the home-invasion robbery the person carries a firearm or other deadly weapon, the person commits a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment ....").
In the denial order under review, the postconviction court recognized that this conviction should have been listed in the judgment as a first-degree felony punishable by life. Because our record does not indicate whether this correction has been made, we remand for correction of the judgment to show the classification of Cherizard's home-invasion robbery with a firearm conviction as a first-degree felony punishable by life.
We reject Cherizard's other argument that because of this reclassification error in the judgment when Cherizard was first sentenced, he is now entitled to a new sentencing hearing. The classification error described here is harmless because the trial court could have imposed the same thirty-year prison sentence if the judgment in the first instance had properly classified this conviction as a first-degree felony punishable by up to life imprisonment. See Muyico v. State , 50 So. 3d 1227, 1228 (Fla. 4th DCA 2011) (rejecting the appellant's argument that he was entitled to a new sentencing hearing when his robbery with a firearm conviction was initially classified as a life felony instead of as a first-degree felony punishable by life and holding that "a classification error raised in a rule 3.800(a) motion, like a scoresheet error raised in a rule 3.800(a) motion, is harmless if the sentencing court ‘could have imposed’ the same sentence"). Accordingly, we affirm the denial of Cherizard's rule 3.800(a) motion, but we remand for correction of the judgment to show Cherizard's conviction of home-invasion robbery with a firearm as a first-degree felony punishable by life.
AFFIRMED; REMANDED for correction of judgment.
EDWARDS and GROSSHANS, JJ., concur.