Fennell v. State

• Decision Date: 18 May 1988
• Docket Number: No. 87-1206,87-1206
• Parties: 13 Fla. L. Weekly 1193, 13 Fla. L. Weekly 1579 Robert FENNELL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1212

528 So.2d 1212

13 Fla. L. Weekly 1193, 13 Fla. L. Weekly 1579

Robert FENNELL, Appellant, v. STATE of Florida, Appellee.

No. 87-1206.

District Court of Appeal of Florida, Fourth District.

May 18, 1988.

On Motion for Rehearing and

Certification of Conflict July 6, 1988.

Richard L. Jorandby, Public Defender, and Jeffrey L. Anderson, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Georgina Jimenez-Orosa, Asst. Atty. Gen., West Palm Beach, for appellee.

STONE, Judge.

Appellant was convicted of two counts of attempted second-degree murder. The information had charged attempted first-degree murder "by stabbing" his victims. The guidelines scoresheet used in sentencing included points for victim injury. The defendant correctly asserts the rule applicable at the time of sentencing that victim injury could only be properly scored if it was an element of the offense. ¹ See Fla.R.Crim.P. 3.701(d)(7); Massard v. State, 501 So.2d 1289 (Fla. 4th DCA 1986), rev. dismissed, 504 So.2d 403 (Fla.1987); Clifford v. State, 518 So.2d 983 (Fla.2d DCA 1988); Smith v. State, 501 So.2d 139 (Fla.2d DCA 1987); Wright v. State, 487 So.2d 1176 (Fla. 1st DCA 1986). See also Mathis v. State, 515 So.2d 214 (Fla.1987); State v. Whitfield, 487 So.2d 1045 (Fla.1986).

However, victim injury may be included in computing the sentencing scoresheet for an attempted homicide, even without regard to the rule amendment, where the specific injury is charged in the information and demonstrated by the evidence. Cf. Moore v. State, 469 So.2d 947 (Fla. 5th DCA 1985), quashed on other grounds, 489 So.2d 1130 (Fla.1986).

The judgment and sentence are, therefore, affirmed.

ANSTEAD and DELL, JJ., concur.

ON MOTION FOR REHEARING AND CERTIFICATION OF CONFLICT

PER CURIAM.

We grant appellant's motion, in part, for the purpose of adding the following certification to the opinion issued May 18, 1988:

We certify conflict with Smith v. State, 501 So.2d 139 (Fla. 2d DCA 1987).

In all other respects, the motion for rehearing is denied.

ANSTEAD, DELL and STONE, JJ., concur.

1 We note that this requirement has subsequently been eliminated. See Florida Rules of Criminal Procedure Re Sentencing Guidelines (Rules 3.701 and 3.988), 509 So.2d 1088 (Fla.1987). However, this amendment is not applicable here. Miller v. Florida, --- U.S. ----, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987).