Inscore v. State, 85-195
| Decision Date | 26 December 1985 |
| Docket Number | No. 85-195,85-195 |
| Citation | 11 Fla. L. Weekly 73,480 So.2d 218 |
| Parties | 11 Fla. L. Weekly 73 Alan Randolph INSCORE, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
Alan Randolph Inscore was convicted of attempted aggravated battery with a deadly weapon and was sentenced to thirty months' incarceration and thirty months' probation. He was ordered to make restitution in the amount of $8,660.25 and although having been adjudicated indigent, was ordered without prior notice to pay costs to the Crimes Compensation Fund.
We affirm the conviction and the requirement for restitution; however, we vacate the sentence and the order to pay costs.
On appellant's sentencing guidelines scoresheet, thirty-six points were added because the victim was injured. The provision of the guidelines pertaining to victim injury, rule 3.701(d)(7), Florida Rules of Criminal Procedure, was amended between the time of commission of the offense and the time of sentencing. Appellant contends that the version of the guidelines in effect at the time of commission of the offense applies rather than the later revision, relying on Miller v. State, 468 So.2d 1018 (Fla. 4th DCA 1985). The holding in that case has been implicitly disapproved by the Supreme Court of Florida. See State v. Jackson, 478 So.2d 1054 (Fla.1985). Regardless, victim injury should not have been scored here under either version of the guidelines, and we vacate the sentence and remand for resentencing with directions that victim injury not be scored. Motyka v. State, 457 So.2d 1114 (Fla. 1st DCA 1984).
The assessment of costs is stricken without prejudice to the state to tax costs after notice to appellant and an opportunity to be heard. Jenkins v. State, 444 So.2d 947 (Fla.1984).
AFFIRMED EXCEPT SENTENCE VACATED AND COSTS STRICKEN.
REMANDED WITH INSTRUCTIONS.
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Beasley v. State, 85-1859
...432. Likewise, the Fourth District has held that victim injury could not be scored for attempted aggravated battery. Inscore v. State, 480 So.2d 218 (Fla. 4th DCA 1985). Other decisions have held that victim injury cannot be scored where it is not an element of the offenses charged. Vaillan......
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Van Horn v. State, 84-2274
...in all cases. See Jones v. State, 482 So.2d 586 (Fla. 1st DCA 1986); Kerr v. State, 481 So.2d 1233 (Fla. 2d DCA 1985); Inscore v. State, 480 So.2d 218 (Fla. 4th DCA 1985); Carter v. State, 483 So.2d 740 (Fla. 5th DCA 1986).2 I note that the logical and legal implication of Jackson is the in......
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Baker v. State, 4-86-2626
...case when victim injury is not an element of the convicted offense. The present case, in our view, is similar to Inscore v. State, 480 So.2d 218 (Fla. 4th DCA 1985), which held victim injury could not be scored for attempted aggravated battery. It was error to score victim injury for attemp......
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Teehan v. State, 84-842
...of same and it was not an essential element of the crime. Holloman v. State, 482 So.2d 431 (Fla. 5th DCA 1985); Inscore v. State, 480 So.2d 218, 219 (Fla. 5th DCA 1985); Whitfield v. State, 471 So.2d 633 (Fla. 1st DCA 1985). It was also error to aggravate the sentence for the reasons pronou......