Kio v. State, 91-2744
| Decision Date | 03 September 1993 |
| Docket Number | No. 91-2744,91-2744 |
| Citation | 624 So.2d 744 |
| Parties | 18 Fla. L. Weekly D1977 Jeffrey M. KIO, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Wendy S. Morris, Asst. Atty. Gen., Tallahassee, for appellee.
Jeffrey M. Kio (appellant) appeals a conviction and the sentences imposed pursuant to his no contest plea to charges enumerated in a seven-count information, i.e., armed burglary of a dwelling with intent to commit sexual battery, armed kidnapping, three counts of armed sexual battery, attempted first degree murder, and use of a firearm in the commission of a felony. Counts I, II, and VI of the information expressly charged use, display, or possession of a firearm in the commission of the offenses of armed burglary of a dwelling, armed kidnapping, and attempted first degree murder. Counts III, IV, and V charged armed sexual battery with use or threat to use a deadly weapon. Count VII charged use of a firearm in the commission of a felony. The issues raised on appeal concern numerous alleged instances of scoresheet error, which, among other things, allegedly resulted in an improper conviction, and a sentence in excess of the appropriate recommended sentencing range. In addition, appellant alleged the trial court erred in failing to grant credit for the time appellant served prior to sentencing. We affirm the conviction, but reverse the sentencing disposition, and remand for resentencing based upon a corrected scoresheet and for a determination of jail time credit.
Appellant's estranged wife was the victim of the crimes charged. The record reflects that appellant broke into the victim's house, and remained there until she returned from work. When the victim arrived, appellant confronted her with a gun. While threatening to use the weapon, he committed three separate acts of sexual battery upon her. Appellant then struck multiple blows to the victim's head with the gun, with such force that portions of her skull were crushed and her scalp was torn away, all the while stating that he was going to kill her and then himself. As appellant doused the area with lighter fluid, the victim managed to crawl outside. There, neighbors intervened to prevent appellant from dragging the victim back inside the house.
Appellant's plea of nolo contendere was entered with no agreement with the state concerning a recommended sentence. He was adjudicated guilty on all counts, and sentenced to serve six concurrent life sentences on the first six counts, including a three-year mandatory minimum sentence for the use of a firearm in the commission of the sexual batteries, and a concurrent fifteen-year sentence for the offense of use of a firearm in commission of the felony of sexual battery. The sentences imposed were in accordance with the recommended guidelines range for the total points reflected on the scoresheet used at sentencing.
The guidelines scoresheet relied upon by the trial court at sentencing was calculated thusly:
Primary offense
3 counts of armed sexual battery, life felonies-- 340
points
Additional offense
armed kidnapping, life felony 44 points
armed burglary, first degree felony punishable by life-- 40 points
attempted first degree murder, first degree felony-- 36 points
use of a firearm in commission of a felony, second degree 26 points
felony--
----------
Total 146
points
Victim Injury
penetration or slight injury (40 x 3) 120 points
death or serious injury 85 points
----------
Total 205
points
--------
TOTAL 691
points
----------
It appears the scoresheet was correct with respect to the primary offenses, but it contained errors with respect to the scoring of attempted first degree murder with a firearm, use of a firearm in the commission of a felony, and victim injury points. Addressing these matters seriatim, under the provisions of sections 777.04(4)(a) and 782.04(1)(a), Florida Statutes, attempted first degree murder is a first degree felony, which is reclassified to a life felony by operation of section 775.087(1)(a), Florida Statutes, if a firearm is used in commission of the attempted murder. The statute is phrased in mandatory terms. See Haywood v. State, 466 So.2d 424, 425 (Fla. 4th DCA 1985), approved, 482 So.2d 1377 (Fla.1986). Indeed, cases construing this statute in the context of convictions for attempted first-degree murder have not treated the reclassification as a matter of prosecutorial discretion. See, e.g., State v. Whitehead, 472 So.2d 730 (Fla.1985); Strickland v. State, 437 So.2d 150 (Fla.1983); Tripp v. State, 610 So.2d 1311 (Fla. 1st DCA 1992); Lentz v. State, 567 So.2d 997 (Fla. 1st DCA 1990); Burgess v. State, 524 So.2d 1132 (Fla. 1st DCA 1988); Parker v. State, 593 So.2d 1186 (Fla. 2d DCA 1992); Williams v. State, 407 So.2d 223 (Fla. 2d DCA 1981). It appears the only time the reclassification does not apply is when the verdict form contains no jury finding that a firearm was used, or when the information did not expressly charge use of a firearm in connection with the convicted offense. On the other hand, a jury verdict of "guilty as charged in the information" has been deemed a sufficient factual determination to trigger the reclassification to a life felony for use of a firearm, when the information charges such. See Lentz, 567 So.2d at 998. For purposes of the enhanced penalty, it is not necessary that the firearm be used to shoot the victim. Rather, any use of the gun in furtherance of the murderous attempt will suffice. See Riggins v. State, 557 So.2d 185 (Fla. 3d DCA 1990).
In the instant case, appellant struck numerous blows to the victim's head with a loaded firearm, with the expressed intent to kill her. During the course of the beating, the gun discharged and a bullet lodged in the wall. We conclude that even though the gun was not used to shoot the victim, the record evidence in this case established that the gun was a "deadly weapon" for purposes of enhancement under section 775.087(1)(a). Therefore, the attempted first degree murder conviction should have been scored as a life felony under the "Additional offense" category of the scoresheet, rather than as a first degree felony.
As to the conviction for use of a firearm in the commission of a felony, appellant argues the scoresheet was incorrect because it reflects convictions for armed sexual battery which were enhanced to a life felony by virtue of the use of a deadly weapon, and a separate conviction for use of a firearm in commission of the felony of sexual battery. Appellant's no contest plea waived his right to challenge the conviction on double jeopardy grounds. See Perrin v. State, 599 So.2d 1365 (Fla. 1st DCA 1992); Wright v. State, 573 So.2d 998 (Fla. 1st DCA 1991). However, when a primary convicted offense is enhanced because a firearm or deadly weapon was used in committing the crime, the act of using the weapon or firearm in the commission of the same crime cannot support a separate sentence for use of a firearm in the commission of a felony. Cleveland v. State, 587 So.2d 1145, 1146 (Fla.1991). Here, the penalties for appellant's primary convicted offenses were enhanced by the use of a deadly weapon in the commission of the offenses. Therefore, it was improper to sentence appellant for the separate offense of use of a firearm in commission of the enhanced felony. Cleveland, 587 So.2d at 1146. Because use of a firearm in the commission of a felony was erroneously scored, upon remand, appellant should not be sentenced for this count and the scoresheet should be corrected by deleting the "Additional offense" points scored for this offense.
With respect to points scored for victim injury, the sentencing guidelines in effect when appellant committed the subject crimes provided that "[v]ictim injury shall be scored for each victim physically injured during a criminal episode or transaction." Fla.R.Crim.P. 3.701(d)7. This provision was construed as evincing legislative intent to limit scoring of victim injury to once per victim, regardless of the number of counts or types of injuries inflicted. For example, in Williams v. State, 565 So.2d 838 (Fla. 1st DCA 1990), review denied, 576 So.2d 295 (Fla.1991), the appellant had been convicted of burglary of a dwelling, sexual battery involving serious physical force, petit theft, and aggravated battery. All of the offenses were committed in the course of one criminal episode, and involved one victim. Williams was assessed forty points for penetration or slight injury, and an additional eighty-five points for death or serious injury. The court held that "double scoring under victim injury was error," and reversed and remanded for resentencing based upon a corrected scoresheet. 565 So.2d at 840. Accord Madrey v. State, 594 So.2d 841 (Fla. 5th DCA 1992).
In this case, under the "Victim injury" category, appellant was assessed a total of 120 points (forty points each for the three sexual battery convictions) for "penetration or slight injury," and eighty-five points...
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