Johnson v. State, No. BN-425
| Decision Date | 29 April 1987 |
| Docket Number | No. BN-425 |
| Parties | 12 Fla. L. Weekly 1112 William Edward JOHNSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, David A. Davis, Pamela D. Presnell, Asst. Public Defenders, for appellant.
Jim Smith, Atty. Gen., Royall P. Terry, Jr., Asst. Atty. Gen., for appellee.
Defendant appeals his sentence for armed robbery, claiming his scoresheet was improperly calculated.
On April 30, 1986, while serving a sentence for DUI, defendant confessed to robbing a convenience store on July 19, 1985. During the armed robbery, approximately $141 was taken and the store clerk was injured during a struggle in which defendant hit her "more than one time with the firearm he had used to rob her, causing injury to the claimant's head". Defendant was subsequently charged by information with robbery with a firearm in violation of section 812.13(2)(a), Florida Statutes (1985).
Defendant pled guilty to armed robbery on the condition that he receive a sentence within the guidelines range. Defendant's point total was 158, calling for a presumptive sentence of seven to nine years' incarceration. Of the 158 points, 14 were scored for victim injury, 17 for "legal constraint at the time of the offense," and 24 for prior misdemeanor convictions. Trial counsel made no objection to these calculations, and the court sentenced defendant to eight years' imprisonment. On appeal defendant contends he was incorrectly assessed 43 points and that his guidelines score should have been 115, not 158, thus placing him in the recommended sentencing range of four and one-half to five and one-half years.
Victim injury is not an element of armed robbery; therefore, it was incorrect to score 14 points on defendant's guidelines scoresheet for victim injury. Fla.R.Crim.P. 3.701(d)(7). This court has held that, since "victim injury is limited to physical trauma and is not a necessary element of appellant's armed robbery offense it is not subject to inclusion in the sentencing guidelines computations for that offense," and that the "issue is cognizable on appeal even though no objection was interposed below." Brown v. State, 474 So.2d 346, 347 (Fla. 1st DCA 1985), rev. denied, 484 So.2d 9 (Fla.1986). See also Parker v. State, 478 So.2d 823 (Fla. 2d DCA 1985) (). This error is apparent from the "four corners of the record" and thus cognizable on appeal. State v. Whitfield, 487 So.2d 1045 (Fla.1986).
When victim injury is not scored, it may be used as a reason for departure from the guidelines. Self v. State, 487 So.2d 391 (Fla. 1st DCA 1986). In this case, if victim injury is proven the trial court may be able to validly depart from the guidelines. Since the defendant's guilty plea was conditioned on being sentenced within the guidelines, however, he...
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Forehand v. State, BT-110
...failure to credit defendant's hours of community service against court costs assessed was apparent from the record); Johnson v. State, 506 So.2d 1086 (Fla. 1st DCA 1987) (improper addition of points for victim injury was apparent from the record because the defendant had been convicted of a......
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Clary v. State, 87-196
...Since this alleged error involves a factual issue not apparent from the record before us, it is not reviewable. Johnson v. State, 506 So.2d 1086 (Fla. 1st DCA 1987). As in Johnson, however, we note that on remand the trial court should correct any scoresheet errors proven by the REMANDED FO......