
    Jose Manuel POLANCO, Appellant, v. The STATE of Florida, Appellee.
    No. 96-3005.
    District Court of Appeal of Florida, Third District.
    April 1, 1998.
    
      Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Robert A. Butterworth, Attorney General, and Doquyen T. Nguyen, Assistant Attorney General, for appellee.
    Before JORGENSON, COPE and GODERICH, JJ.
   PER CURIAM.

Jose Manuel Polanco appeals from a judgment of conviction and sentence for manslaughter with a firearm. We affirm the conviction, but for the following reason, we vacate the sentence and remand for resen-tencing.

After the court had adjudicated defendant guilty pursuant to the jury’s verdict on July 22, 1996, the trial court ordered a pre-sen-tence investigation. The court conducted a sentencing hearing seven weeks later, on September 6, 1996. At that hearing, the State asked the court to include on the sentencing scoresheet 21 points for legal constraint based upon defendant’s outstanding warrants from New York. The defendant objected to the inclusion of these points, arguing that the State’s assertion that the warrants were outstanding was not accurate, and that the State had failed to prove the existence of the warrants by competent evidence. The State produced a fax of the warrants and not certified copies. Based upon the State’s assurance that the certified copies were forthcoming, the court took judicial notice of the New York warrants, and over the defendant’s objections, included the points for legal constraint.

We vacate the sentence, remand for resen-tencing, and direct the trial court to remove the 21 points for legal constraint because the State never proved, by competent evidence before the trial court, that defendant was under legal constraint when he committed this offense. See Mills v. State, 690 So.2d 735 (Fla. 4th DCA 1997); Schott v. State, 641 So.2d 465 (Fla. 4th DCA 1994); Brown v. State, 632 So.2d 1052 (Fla. 5th DCA 1994). Without that evidence, the points must be removed. Id. at 1053.

Just as the State must be prepared to go forward with its proofs at trial, the State must likewise be prepared to present its proofs at the sentencing hearing. If the State wanted the court to consider an enhanced penalty for the defendant based upon alleged legal constraint, it was incumbent upon the State to present competent evidence of that constraint to the court at the time of the hearing, which was held seven weeks after the PSI was ordered. If the evidence was not available, but as in this case was expected to become available shortly, the State should have asked for a postponement of the sentencing hearing. The State did not have the proof of legal constraint available to the court at the sentencing hearing; it did not request a recess or postponement. To remand, and allow the State to now present its proof, as the dissent urges, would be to condone its lack of preparation.

Affirmed in part; vacated in part; remanded with directions.

JORGENSON and GODERICH, JJ., concur.

COPE, Judge,

concurring in part and dissenting in part.

I concur that the conviction must be affirmed.

As to the sentencing point, the defendant-appellant conceded that a bench warrant had been issued for his arrest in New York in 1991. With that concession, it was immaterial whether the State offered faxed copies as opposed to certified copies.

The real question was whether the bench warrant was still outstanding on the date of the crime in 1993, so that the defendant was properly viewed as being under “legal constraint.” The defense proffered that the warrant was no longer outstanding. The State proffered that it was outstanding and that the State had arranged for the appropriate New York court clerk to be available for a telephone hearing to verify the status of the warrant. See Fla. R. Jud. Admin. 2.071.

The court did not conduct a telephone hearing and instead ordered the State to file a certified copy of the bench warrant. The court stated that if the certified copy indicated that the warrant was no longer outstanding, then the sentence would be revisited. When filed, the certified copy of the New York bench warrant did not indicate, one way or the other, whether the bench warrant remained outstanding in 1993.

I agree that, under the circumstances, the sentencing order must be reversed. However, I would remand for an evidentiary hearing to determine whether the defendant was under legal constraint. 
      
       The Evidence Code provides:
      Admissibility of duplicates. — A duplicate is admissible to the same extent as an original, unless:
      (1)The document or writing is a negotiable instrument as defined in s. 673.1041, a security as defined in s. 678.102, or any other writing that evidences a right to the payment of money, is not itself a security agreement or lease, and is of a type that is transferred by delivery in the ordinary course of business with any necessary endorsement or assignment.
      (2) A genuine question is raised about the authenticity of the original or any other document or writing.
      (3) It is unfair, under the circumstance, to admit the duplicate in lieu of the original.
      § 90.953, Fla. Stat. (1995).
     