Mincey v. State
| Decision Date | 12 May 1988 |
| Docket Number | BT-249,Nos. BS-379,s. BS-379 |
| Citation | 525 So.2d 465,13 Fla. L. Weekly 1132 |
| Parties | 13 Fla. L. Weekly 1132 Joseph Ben MINCEY, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, Maria Ines Suber, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., Edward C. Hill, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
Appellant, Joseph Ben Mincey, Jr., seeks review of his sentences in two separate cases which were imposed under the sentencing guidelines. He alleges two errors, the use of two scoresheets instead of one and the scoring of his probationary offenses as "prior record" instead of "additional offenses at conviction." We agree and reverse for resentencing.
While on probation for the commission of burglary of a structure, false report to a law enforcement officer, assault, and grand theft, appellant committed armed robbery on July 7, 1986. On January 16, 1987, a jury verdict was entered on the armed robbery charge; on February 20, 1987, a violation of probation hearing was held, at which appellant pled no contest; on March 3, 1987, Judge Turner sentenced appellant to prison for eight years for armed robbery; and on March 27, 1987, as a result of the probation violation, Judge Bower sentenced appellant to prison for thirty months for burglary of a structure, false report to a law enforcement officer, assault, and grand theft, all sentences to run concurrently.
The armed robbery scoresheet reflected a total score of 156 points with a recommended sentencing range of 7-9 years. The scoresheet for all of the offenses for which appellant had been placed on probation reflected a total score of 27 points with a recommended sentencing range of "any non-state prison sanction," with the next highest cell being "community control or 12-30 months incarceration." Both trial judges imposed sentences within the recommended sentencing range.
Rule 3.701(d)(1), Florida Rules of Criminal Procedure, states in pertinent part:
One guideline scoresheet shall be utilized for each defendant covering all offenses pending before the court for sentencing.
Since both a guilty verdict and a nolo contendere plea had been entered in the present case before the first sentencing hearing was held, all offenses were pending for sentencing at the same time, and, therefore, one scoresheet should have been used. See Gallagher v. State, 476 So.2d 754 (Fla. 5th 1985) (); cf. Nelson v. State, 498 So.2d 553 (Fla. 4th 1986) (), and Clark v. State, 519 So.2d 1095 (Fla. 1st DCA 1988) ().
With respect to the second error raised by appellant, Rules 3.701(d)(4) and (5), Florida Rules of Criminal Procedure, state in pertinent part:
(4) Additional offenses at conviction: All other offenses for which the offender is convicted and which are pending before the court for sentencing at the same time shall be scored as additional offenses based upon their degree and the number of counts.
(5)(a) "Prior record" refers to any past criminal conduct on the part of the offender, resulting in conviction, prior to the commission of the primary offense.
The Committee Note to Rule 3.701(d)(5) states in pertinent part:
For any offense where sentence was previously suspended pursuant to the imposition of probation and such offense is now before the court for sentencing, upon a revocation of that probation based upon a subsequent criminal offense (which subsequent offense is also before the court for sentencing at the same time), the earlier offense shall be scored as "prior record" and not as "additional offense."
The above committee note was adopted by the Florida Supreme Court on December 19, 1985, The Florida Bar Re: Rules of Crim.Proc., 482 So.2d 311...
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Gibbs v. State, 95-1923
...VOPs were scored as "additional offenses at conviction." Hingson v. State, 553 So.2d 768 (Fla. 1st DCA 1989); Mincey v. State, 525 So.2d 465 (Fla. 1st DCA 1988); Slappy v. State, 516 So.2d 342 (Fla. 1st DCA 1987). Upon violating probation, a defendant cannot be sentenced to a term that coul......
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Hingson v. State, 89-1427
...the earlier offenses, appellant's probation violations should have been scored as "additional offenses at conviction." Mincey v. State, 525 So.2d 465 (Fla. 1st DCA 1988); Peterson v. State, 523 So.2d 168 (Fla. 1st DCA 1988); Slappy v. State, 516 So.2d 342 (Fla. 1st DCA Appellant claims that......
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Clark v. State
...scoresheet. Gallagher, 476 So.2d at 756. Accordingly, the result reached in Gallagher is approved. Similarly, in Mincey v. State, 525 So.2d 465, 466 (Fla. 1st DCA 1988), the First District correctly concluded that it was error to use separate scoresheets for both a guilty verdict and a plea......
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Jackson v. State, 87-64
...have been scored as "additional offenses at conviction." DeVille v. State, 529 So.2d 319 (Fla. 2d DCA 1988). See also, Mincey v. State, 525 So.2d 465 (Fla. 1st DCA 1988); Slappy v. State, 516 So.2d 342 (Fla. 1st DCA Since the improper scoring of the appellant's offenses resulted in a guidel......