Laster v. State

• Decision Date: 05 July 1990
• Docket Number: No. 89-2072,89-2072
• Citation: 564 So.2d 536
• Parties: 15 Fla. L. Weekly D1750 James A. LASTER, Sr., Appellant, v. STATE of Florida, et al., Appellees.
• Court: Florida District Court of Appeals

Page 536

564 So.2d 536

15 Fla. L. Weekly D1750

James A. LASTER, Sr., Appellant, v.STATE of Florida, et al., Appellees.

No. 89-2072.

District Court of Appeal of Florida Fifth District.

July 5, 1990.

Rehearing Denied Aug. 2, 1990.

James L. Laster, Raiford, pro se.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Bonnie Jean Parrish, Asst. Atty. Gen., Daytona Beach, for appellees.

DANIEL, C.J.

Defendant, James A. Laster, Jr., appeals, pro se, from the order of the trial court resentencing him on his convictions for sexual battery upon a person less than twelve years of age, section 794.011(2), Florida Statutes(1985), and lewd and lascivious assault upon a child, section 800.04, Florida Statutes(1985).

In September of 1985, defendant pleaded guilty to committing the offenses of sexual battery upon a person less than twelve years of age and lewd and lascivious assault upon a child.The trial court sentenced defendant to a term of life imprisonment on the sexual battery conviction and a concurrent term of seven years imprisonment on the lewd and lascivious assault conviction.On direct appeal, this court concluded that the trial court had erred in sentencing defendant and therefore reversed defendant's sentence and remanded the case for resentencing.Laster v. State, 486 So.2d 88(Fla. 5th DCA1986).On remand, the trial court resentenced defendant to a term of ninety-nine years imprisonment with a twenty-five year mandatory minimum on the sexual battery conviction and a concurrent term of thirty months imprisonment on the lewd and lascivious assault conviction.Defendant thereafter filed with the trial court a motion to correct sentence pursuant to rule 3.850 of the Florida Rules of Criminal Procedure.In the motion, defendant asserted that his sentence was illegal.The trial court granted defendant's motion for relief and then resentenced defendant to a term of life imprisonment with a twenty-five year mandatory minimum on the sexual battery conviction and a concurrent term of seven years imprisonment on the lewd and lascivious assault conviction.Defendant appeals this sentence.

Defendant argues that it was error for the trial court to impose sentence on the sexual battery conviction without first preparing a sentencing guidelines scoresheet.This argument is devoid of merit because the crime of sexual battery upon a child less than twelve years of age is a capital felony and, therefore, the sentencing guidelines do not apply.See§ 921.001(4)(a),Fla.Stat.(1985).See alsoLaster v. State, 486 So.2d 88(Fla. 5th DCA1986);Brosz v. State, 466 So.2d 256(Fla. 5th DCA1985).

Defendant next argues that the trial court erred in failing to prepare a sentencing guidelines scoresheet before imposing sentence on his conviction for lewd and lascivious assault.We agree.SeeWorthington v. State, 501 So.2d 75(Fla. 5th DCA1987);Davis v. State, 493 So.2d 82(Fla. 1st DCA1986).Accordingly, defendant's sentence is vacated and this matter remanded for resentencing on that charge.

Defendant also argues that his sentence should be reversed because the trial court violated his right to due process.Specifically, defendant argues that, in resentencing him, the trial court improperly imposed an increased sentence in violation of the principle set forth in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656(1969).

As noted above, the trial court vacated defendant's sentence of ninety-nine years imprisonment on the sexual battery conviction and thirty months imprisonment on the lewd and lascivious assault conviction and then resentenced defendant to a term of life imprisonment with a twenty-five year mandatory minimum on the sexual battery conviction and a term of seven years imprisonment on the lewd and lascivious assault conviction.Since this resentencing resulted from defendant's pursuit of his right to be sentenced according to applicable law, the principle enunciated in North Carolina v. Pearce must be consulted.Blackshear v. State, 531 So.2d 956(Fla.1988);Wemett v. State, 547 So.2d 955(Fla. 1st DCA1989).See alsoFrazier v. State, 540 So.2d 228(Fla. 5th DCA1989);Denholm v. State, 477 So.2d 34(Fla. 5th DCA1985).

In North Carolina v. Pearce, the Supreme Court ruled that due process prohibits increased sentences motivated by vindictive retaliation by the sentencing court.To prevent vindictiveness from entering into a sentencing court's decision and to allay any fear on the part of a defendant that an increased sentence is, in fact, the product of vindictiveness, the Court fashioned a prophylactic rule that whenever a more severe sentence is imposed upon resentencing, the reason for the increase must affirmatively appear...