Johnson v. State, BQ-350
| Decision Date | 12 May 1988 |
| Docket Number | No. BQ-350,BQ-350 |
| Citation | 525 So.2d 964,13 Fla. L. Weekly 1136 |
| Parties | 13 Fla. L. Weekly 1136 Willie Clyde JOHNSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Gilbert A. Schaffnit, Gainesville, for appellant.
Robert A. Butterworth, Atty. Gen., and Bradford L. Thomas, Asst. Atty. Gen., Tallahassee, for appellee.
This is an appeal from an order denying appellant's motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800. Finding merit in appellant's argument concerning a sentencing guidelines scoring error, we reverse and remand for resentencing.
Willie Clyde Johnson was charged on 27 September 1984 with one count of burglary of a dwelling and one count of sexual battery with slight force. He was tried by a jury and convicted of trespass to an occupied structure (a lesser included misdemeanor offense) and sexual battery as charged. A category 2 sentencing guidelines scoresheet was prepared and approved. The prior record portion of the scoresheet assessed 211 points for a first-degree felony punishable by life and 26 points for a third-degree felony. The 211-point assessment was based on appellant's 1970 Florida conviction for robbery. 1 The total score was 470, for a recommended range of 17-22 years' incarceration. The trial court sentenced appellant to 60 days on the trespass conviction and to the statutory maximum of 15 years' incarceration for sexual battery with slight force, the terms to run concurrently.
Johnson did not object to the scoresheet before imposition of sentence, on direct appeal, or in a subsequent motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. In October 1986, however, he filed a motion to correct illegal sentence pursuant to Rule 3.800.
In that motion, Johnson argued that the trial court improperly scored the 1970 robbery conviction as a first-degree felony punishable by life. Instead, he contended, the degree of the offense was ambiguous or impossible to determine. Therefore, pursuant to Florida Rule of Criminal Procedure 3.701 d.5. (a)(3), 2 it should have been scored as a third-degree felony, resulting in a recommended range of seven to nine years' incarceration. The trial court denied the motion. This appeal ensued.
In 1970, the crime of robbery in Florida was not divided by degree. Section 813.011, Florida Statutes (1969), provided:
Robbery defined; penalties.--Whoever, by force, violence or assault or putting in fear, feloniously robs, steals and takes away from the person or custody of another, money or other property which may be the subject of larceny, shall be punished by imprisonment in the state prison for life or for any lesser term of years, at the discretion of the court.
The state argues that, in determining the degree of a prior offense for sentencing guidelines purposes, the focus should be on the maximum allowable punishment for the prior offense. Because the maximum allowable punishment for the prior offense in this case was life in prison, the state contends, it was properly scored as a first-degree felony punishable by life.
We reject the assertion that the degree of a prior Florida felony should be determined by reference to the maximum allowable punishment for the offense. Such an approach would be inconsistent with the analysis applied to scoring prior out-of-state convictions, where the inquiry has been directed to the elements of the crime rather than the punishment provided. See Forehand v. State, 524 So.2d 1054 (Fla. 1st DCA 1988), and cases cited therein. Moreover, assigning a degree to a Florida felony which had no degree at the time of a defendant's conviction for that felony would violate the rule established in Johnson v. State, 476 So.2d 786 (Fla. 1st DCA 1985), that prior offenses should be scored according to their degree at the time of the prior conviction. Where, as here, the felony has no degree at the time of the defendant's conviction, we conclude the degree is "impossible to determine" in the language of Rule 3.701 d.5. (a)(3). The prior offense should...
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Johnson v. State
...rule 3.800(a). Other districts have been routinely reviewing orders denying rule 3.800(a) motions. For example, in Johnson v. State, 525 So.2d 964 (Fla. 1st DCA 1988), the first district reversed and remanded a case for sentencing after finding that the trial court had committed a sentencin......
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Walsh v. State, 91-1867
...first degree felony and not as a life felony because the court could not determine the type of weapon involved. Contra Johnson v. State, 525 So.2d 964 (Fla.1st DCA 1988). In applying Jenkins to this case, consideration must first be given to the federal bank robbery 18 U.S.C. Sec. 2113, in ......
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Hammond v. State, 90-2645
...(Fla.1989); State v. Whitfield, 487 So.2d 1045, 1046 (Fla.1986); Ellis v. State, 538 So.2d 118 (Fla. 1st DCA 1989); Johnson v. State, 525 So.2d 964 (Fla. 1st DCA 1988). As a general rule, despite scoresheet error, a negotiated plea agreement is binding, and is sufficient to justify departur......
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Harris v. State, 85297
...review Harris v. State, 650 So.2d 639 (Fla. 4th DCA 1995), which expressly and directly conflicts with the opinion in Johnson v. State, 525 So.2d 964 (Fla. 1st DCA 1988). We have jurisdiction. Art. V, § 3(b)(3), Fla. Harris raises two issues in this proceeding. The first concerns whether th......