Jolly v. State, 87-1435
| Decision Date | 16 November 1988 |
| Docket Number | No. 87-1435,87-1435 |
| Citation | 536 So.2d 1086,13 Fla. L. Weekly 2497 |
| Court | Florida District Court of Appeals |
| Parties | 13 Fla. L. Weekly 2497 Eric JOLLY, Appellant, v. STATE of Florida, Appellee. |
Richard L. Jorandby, Public Defender, and Tanja Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant was charged in Circuit Court Case No. 85-3650 by information with robbery with a firearm (Count I) and aggravated battery with a handgun (Count II). He was adjudged guilty of those offenses pursuant to adverse jury verdicts. On October 25, 1985, appellant was sentenced to concurrent terms of five years in prison on each count, consecutive to a twelve-year sentence imposed in Circuit Court Case No. 80-8059, where in the trial court revoked appellant's probation for armed robbery based on evidence it heard at the trial of the present Circuit Court Case No. 85-3650, as well as appellant's admissions to certain technical violations.
On a previous appeal, this court determined that appellant's guidelines scoresheet had been incorrectly prepared, since the offense for which appellant was on probation was scored as a prior conviction, not an additional offense. This cause was remanded for resentencing, and, on April 27, 1987, the trial court resentenced appellant to seven years in prison in Circuit Court Case No. 80-8059, which was within the seven to nine-year sentencing range suggested by the corrected sentencing guidelines scoresheet. However, appellant's concurrent five-year sentences in Circuit Court Case No. 85-3650 remain consecutive to the sentence in Circuit Court Case No. 80-8059, for a total sentence of twelve years' imprisonment.
Notice of appeal was timely filed, wherein appellant contends the trial court erred in resentencing appellant because, as the sentence now stands, the two concurrent five-year sentences in Case No. 85-3650 run consecutive to the seven-year prison sentence imposed in Case No. 80-8059. This total sentence constitutes a departure from the amended scoresheet and no grounds for such departure are included in the record. The state has conceded the error.
In the prior appeal, this court held that appellant's violation of probation should not have been scored as a prior conviction but as an additional offense and such computational correction results in a guidelines score for all cases...
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