Massard v. State, 84-1741
| Decision Date | 16 July 1986 |
| Docket Number | No. 84-1741,84-1741 |
| Court | Florida District Court of Appeals |
| Parties | 11 Fla. L. Weekly 1561 Christian Daniel MASSARD, Appellant, v. STATE of Florida, Appellee. |
We substitute the following for the opinion of May 7, 1986, filed in this case. Except for the modification exemplified by the amended opinion, rehearing is denied.
Christian D. Massard was convicted by a jury of two counts of attempted first-degree murder and two counts of robbery with a deadly weapon. We affirm those convictions.
In the judgment adjudicating appellant guilty of these offenses, each of the four felonies was enhanced from first-degree felony to life felony on the basis that a weapon or firearm was used in each instance. § 775.087(1)(a), Fla.Stat. (1983).
On each of the murder counts the jury returned a verdict of: "Guilty of Attempted First Degree Murder, as charged." The information charged that these two offenses were each committed with a blunt instrument. The jury was instructed to the effect that a deadly weapon was a weapon used in a way likely to produce death or great bodily harm. The instruction pertained to the lesser-included offense of aggravated battery. Thus, the jury, having been instructed on the definition of a deadly weapon and finding appellant guilty of attempted first-degree murder "as charged" in the information, which recites the use of a blunt instrument, has made a sufficiently specific finding that the offenses were committed with the use of a weapon. Whitehead v. State, 446 So.2d 194 (Fla. 4th DCA 1984), rev. denied, 462 So.2d 1108 (Fla.1985).
The same analysis does not apply to the robbery convictions, however, because use of a weapon is an essential element of the crime of armed robbery. § 812.13(2)(a), Fla.Stat. (1983). It may not also be used to reclassify the offense. State v. Brown, 476 So.2d 660 (Fla.1985). Therefore, on remand the judgment is to be amended by reducing the robbery convictions to first-degree felony convictions.
Because the sentencing phase of these proceedings was fatally flawed, requiring that appellant be resentenced, we briefly treat each appellate contention pertaining to the original sentencing.
Appellant contends that where the sentencing guidelines have been amended, the version in effect at the time of the commission of the offense applies. This contention is supported by our holding in Miller v. State, 468 So.2d 1018 (Fla. 4th DCA 1985). The Miller holding, however, has been implicitly disapproved by the Supreme Court of Florida in State v. Jackson, 478 So.2d 1054 (Fla.1985), where the court held that the version of the guidelines in effect at the time of sentencing is to be applied by the trial court.
Because retention of jurisdiction serves no purpose when an offender is sentenced under the guidelines, without the possibility of parole, appellant is correct in asserting that his sentence in this respect is invalid. Following the lead of Davis v. State, 458 So.2d 42 (Fla. 4th DCA 1984), and consonant with the logic expressed by the second district in Bradley v. State, 468 So.2d 378 (Fla. 1st DCA 1985), rather than simply setting aside the retention, we vacate the sentence and remand for resentencing because "[w]e hesitate to affirm a lengthy sentence which the trial court may not have imposed had it known the defendant would not be eligible for parole." Id. at 380.
It is further correctly argued by appellant that scoring forty-two points for victim injury was error. Rule 3.701 d. 7., Florida Rules of Criminal Procedure, provides: "Victim injury shall be scored if it is an element of any offenses at conviction." The court in Toney v. State, 456 So.2d 559, 560 (Fla. 2d DCA 1984), held that "points for victim injury should not have been assessed against appellant when victim injury does not constitute an element of the convicted offense of armed robbery." The court nevertheless affirmed the sentence because a deduction of the challenged points still kept appellant within the range which corresponded to his fifteen-year sentence. Because the trial court in the present case departed from the guidelines in any event the forty-two points did not necessarily aggravate the sentence; however, on resentencing, points should not be scored for victim injury.
With regard to the reasons utilized by the trial court as a basis for departure from the sentencing guidelines, two of the four reasons were proper:
1. Appellant was an habitual felony offender. We hold that this is a proper reason for departure from the guidelines. Se...
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