ON MOTION FOR REHEARING OR CLARIFICATION
We deny the appellants motion for rehearing but grant the appellants motion for clarification, withdraw our opinion dated November 15, 2023, and issue the following in its place.
A jury found the appellant guilty of sexual battery (physical force), domestic battery by strangulation, and harassing a witness, victim, or informant. After being sentenced on the charges, the appellant filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion asserting errors in the scoring of several Ohio convictions on the sentencing scoresheet. The trial court granted the motion in part and denied the motion in part, declining to resentence the appellant.
On appeal, the appellant does not contest his convictions; instead, he appeals the sentences imposed, raising two issues: (1) two Ohio convictions were improperly scored on his scoresheet, and (2) a sentencing multiplier for a sex crime committed in front of a child was improperly applied because the information did not allege a child was present. On the second issue, the appellant relies on Alleyne v. United States, 570 U.S. 99 (2013), and Jones v. United States, 526 U.S. 227 (1999).
We affirm the trial courts rulings on the second issue without discussion. We also affirm as to the first issue and explain our reasons.
The two Ohio convictions were for aggravated robbery and possession of controlled substances. In his reply brief, the appellant concedes the Ohio conviction for possession of controlled substances was properly scored. That leaves the issue of the scoring for the Ohio aggravated robbery conviction.
The record reflects that, prior to sentencing, the State, through discovery, provided the appellant with certified copies of his Ohio convictions. The appellant did not challenge the scoring of the Ohio convictions in his sentencing memorandum or at sentencing. The appellants rule 3.800(b)(2) motion contended that the Ohio statute under which the appellant was convicted was not analogous to Floridas aggravated robbery statute because the Ohio statute allowed for aggravated robbery to be committed in multiple ways, one of which included theft while in possession of “dangerous ordnance” without a requirement of use force, violence, or assault, or putting the victim in fear.
We agree with the appellant that “only the elements of the out-of-state crime ․ should be considered in determining whether the conviction is analogous to a Florida statute for the purpose of calculating points for a sentencing guidelines scoresheet.” Dautel v. State, 658 So. 2d 88, 91 (Fla. 1995). When the scoring of an out-of-state conviction is contested, the trial court may consider the out-of-state judgment entered, and if necessary, the charging document, to determine the elements of the out-of-state conviction for comparison with a Florida offense for scoring. See Knarich v. State, 866 So. 2d 165, 169 (Fla. 2d DCA 2004) (concluding the trial court may consider the charging instruments and the judgments to determine if the elements of an out-of-state conviction are analogous to a pertinent Florida statute).
“Having challenged multiple prior convictions included on his scoresheet in his amended rule 3.800(b) motion, [the appellant] correctly argues that the State was required to introduce competent evidence in support of its scoring of [the appellants] prior record[.]” Sanders v. State, 333 So. 3d 235, 235-36 (Fla. 4th DCA 2022). Below and on appeal, the appellant traveled on legal arguments discussing the various elements of robbery offenses in Ohio and Florida, referring only to statutory language. In discussing these legal arguments, appellants initial brief makes the conclusory argument that the State failed to meet its burden to prove how appellants Ohio aggravated robbery should be scored. Appellant does not, however, make any argument that the State failed to present evidence or ask for an evidentiary hearing. See Hoskins v. State, 75 So. 3d 250, 257 (Fla. 2011) (“[A]n issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply brief.” (quoting J.A.B. Enters. v. Gibbons, 596 So. 2d 1247, 1250 (Fla. 4th DCA 1992))).
We are not persuaded by the appellants arguments on appeal that the Ohio aggravated robbery charge was improperly scored because the elements of the crime are not analogous to the Florida crime for which the points were scored. Instead, we agree with the States arguments on appeal.
Even if we agreed with the appellant that the Ohio aggravated robbery conviction was improperly scored, we determine the error was harmless. Having reviewed the sentencing proceeding, we determine the trial court would have imposed the same sentences even with the appellants requested correction for the Ohio aggravated robbery conviction. See Green v. State, 293 So. 3d 23, 24 (Fla. 4th DCA 2020) (“When a scoresheet error is raised on direct appeal via a rule 3.800(b) motion, courts must apply the ‘would-have-been-imposed’ test to determine whether a scoresheet error warrants resentencing.” (quoting Ray v. State, 987 So. 2d 155, 156 (Fla. 1st DCA 2008))). In pronouncing the sentences, the trial court placed little reliance on the scoresheet. The trial court noted the appellant “comes in with a relatively minimal record and no prior offenses involving sex offenses.” However, the trial court focused on two things in explaining the sentences imposed: (1) the outrageousness of the appellants brutal attack on the victim while she was incapacitated and unable to fight back; and (2) the outrageousness of the brutal attack and sexual battery of the victim in the presence of their minor child. We are satisfied beyond a reasonable doubt that the trial court would have imposed the same sentences regardless of whether the scoresheet was corrected as the appellant argues on appeal. Thus, we alternatively affirm the trial courts rulings regarding the Ohio aggravated robbery conviction and points assessed for that conviction. State v. Anderson, 905 So. 2d 111, 118 (Fla. 2005) (stating the would-have-been-imposed test is no different from the DiGuilio
1
harmless error test).
We affirm the trial courts rulings on the appellants rule 3.800(b)(2) motion, as well as the appellants sentences, and remand for the trial court to enter a corrected scoresheet as ordered in the trial courts partial grant of the appellants rule 3.800(b)(2) motion.
Affirmed and remanded.
FOOTNOTES
1
. State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986) (defining harmful error as error about which an appellate court cannot say “beyond a reasonable doubt that the error complained of did not contribute to the verdict”).
Conner, J.
Gerber and Levine, JJ., concur.