Flowers v. State, 89-2304
| Decision Date | 11 October 1990 |
| Docket Number | No. 89-2304,89-2304 |
| Parties | 15 Fla. L. Weekly D2552 Willie Otis FLOWERS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and David S. Morgan, Asst. Atty. Gen., Daytona Beach, for appellee.
Flowers appeals his sentence because points for "legal constraint" were awarded for each offense committed while on probation. We affirm. Walker v. State, 546 So.2d 764 (Fla. 5th DCA 1989).
Flowers urges that our decision in Miles v. State, 418 So.2d 1070 (Fla. 5th DCA 1982) dictates we reconsider our opinion in Walker and reverse. We reject this contention because Miles involved a single offense, while both Walker and Flowers committed multiple offenses for which they were being sentenced. In our view, Walker 's construction of Rule 3.701, Florida Rules of Criminal Procedure promotes the goal of fairness and uniformity envisioned by the enactment of the sentencing guidelines.
Because we are aware that numerous appeals involving this interpretation are pending, we certify to the supreme court the following question as being of great public importance:
This case involves the propriety of applying a multiplier to the "legal status" factor in computing a guidelines sentence under Florida Rule of Criminal Procedure 3.701 d.6.
While on probation on an initial drug offense, the defendant committed five additional substantive drug offenses. His probation was revoked and he was sentenced on the initial offense and the five additional offenses. The six offenses were duly scored (on scoresheet 3.988(g) Category 7: Drugs) as either the primary offense (3.701 d.3) or additional offenses at conviction (3.701 d.4). However, instead of scoring 14 points for (3.701 d.6), and perhaps increasing the sentence to the next higher cell (recommended or permitted guidelines range) for the revocation of probation as permitted by 3.701 d.14., the sentencing court did not use the bump-up provision in 3.701 d.14. but multiplied the 14 points permitted for legal status at time of offense (3.701 d.6.) by 5 (representing each of the 5 additional offenses) for a total of 70 points.
This case involves an old but illusive problem involving factoring. The ambiguity is in determining if the intent is to weigh one, but not the other, factor or to weigh both factors separately or to weigh both factors together in some variable measure of their relationship, as by addition, subtraction, multiplication or division. Under the sentencing guidelines, the offenses (primary or additional) at conviction are weighed on the scoresheet as factors I. and II. (of 5 factors explicitly weighed on the face of the scoresheet) and by matrix, two variable aspects of the offenses are measured (number and degree of seriousness). Time is not weighed. See separate opinion in Lipscomb v. State, 15 F.L.W. D2227 (Fla. 5th DCA Sept. 6, 1990).
The defendant's prior criminal record is scored as factor III. and again by matrix, the offenses are weighed by number and seriousness.
Victim injury is scored as factor V. and here two varying aspects of this factor are weighed--the degree of physical injury and the number of victims. Rule 3.701 d.7. expressly provides scoring for each victim physically injured.
However, under factor IV. "Legal status at time of offense," the scoring is strictly binary: (1) if the legal status of the defendant at the time of committing all offenses for which he is being sentenced was that he was under no restriction, he gets no points, but if, (2) at the time of committing any offense for which he is being sentenced, the defendant was under legal constraint, i.e., his legal status was within those defined in 3.701 d.6., he receives the number of points provided on the appropriate scoresheet. Scoresheet 3.988(g) for Category 7: Drugs provides for 14 points for legal constraint. The number of points depends on which scoresheet is used and the appropriate scoresheet depends not on which offense was committed while the defendant was under a status of legal constraint, but depends on the primary offense defined in 3.701 d.3. See Gissinger v. State, 481 So.2d 1269 (Fla. 5th DCA 1986).
When one factor to be considered in arriving at any conclusion is related by description or otherwise to some other factor, confusion can easily result from that relationship. When a circumstance involves two factors and one is mentioned incidentally as part of the description of the one factor to be weighed, the problem is somewhat like that of placing emphasis on the correct syllable of a word. Here the factor to be weighed is the defendant's legal status or legal constraint, and the phrase "at the time of offense" merely refers to the time of the relevant legal status or constraint. The emphasis is on the status, a continuing condition, and not on the offense which relates to a point of time with respect to the legal status. There are other illustrations of what is, in substance, the same problem. See, e.g., Miles v. State, 418 So.2d 1070 (Fla. 5th DCA 1982). In each of two separate criminal cases, Miles was released and ordered to appear before the trial court at one time and one place. When he failed to appear, Miles was convicted of two counts of wilfully failing to appear. On appeal this court reversed one conviction. The State argued that the emphasis should be on each of the original criminal cases in which Miles failed to appear. This court disagreed. Recognizing that the essence of the charge was Miles' failure to appear which occurred but one time, although his appearance on that occasion related to two different matters, this court held that to be convicted twice under the same statutory offense as to the same factual event violated Miles'...
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