Self v. State, BE-421
| Decision Date | 23 April 1986 |
| Docket Number | No. BE-421,BE-421 |
| Citation | 487 So.2d 391,11 Fla. L. Weekly 959 |
| Parties | 11 Fla. L. Weekly 959 Dallas SELF, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael E. Allen, Public Defender, and Kenneth D. Driggs, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Royall P. Terry, Jr., Asst. Atty. Gen., for appellee.
Appellant appeals the sentence imposed upon him as the consequence of his violation of probation. We reverse and remand for resentencing.
In 1983, appellant was charged with committing an aggravated battery, in which the victim sustained a severe head injury. Pursuant to plea bargaining, he pled guilty to the lesser included offense of aggravated assault and was placed on probation. Due to violations thereof, on January 8, 1985, the trial judge revoked appellant's probation and sentenced him to five years in prison, in a three or four cell departure from the sentencing guidelines which was based solely upon appellant having violated his probation.
The guidelines scoresheet presented at the 1985 sentencing hearing totaled 115 points, including 36 points for severe injury to the victim. The original scoresheet from the 1983 sentencing had scored only 24 points for moderate victim injury, for a total of 103 points. The 103 point score resulted in a recommended range of any non-state prison sanction, while the 115 point total resulted in a recommendation of community control or 12 to 30 months' incarceration. Without any scoring for victim injury, appellant's score would have been 79 points, which results in a recommended range of any non-state prison sanction.
At the January 1985 hearing, defense counsel objected to any scoring for victim injury on the ground that Florida Rule of Criminal Procedure 3.701(d)(7) provides that victim injury shall be scored only if the victim injury is an element of the offense at conviction; that since aggravated assault does not necessarily involve any contact, scoring for victim injury is improper.
As the State concedes, appellant's argument on this point has merit. The scoring of victim injury in this case was improper under the plain meaning of rule 3.701(d)(7). The trial judge erred in failing to correct the guidelines scoresheet accordingly. See Whitfield v. State, 471 So.2d 633 (Fla. 1st DCA 1985); Brown v. State, 474 So.2d 346 (Fla. 1st DCA 1985); and Parker v. State, 478 So.2d 823 (Fla.2d DCA 1985).
The State argues that the error is harmless since the trial judge properly departed from the guidelines. Aside from the fact the departure in this case was improper, as discussed below, cases have established that an appellate court will not uphold a departure from an incorrectly computed scoresheet. Scott v. State, 469 So.2d 865 (Fla. 1st DCA 198...
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Echevarria v. State, 85-552
...court computed. Incorrect computations on a scoresheet necessitate vacating the sentence and remanding for resentencing. Self v. State, 487 So.2d 391 (Fla. 1st DCA 1986); Parker v. State, 478 So.2d 823 (Fla. 2d DCA Next, we turn to the trial court's departure from the guidelines sentence. T......
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Williams v. State
...2d DCA 1985); Brown v. State, 474 So.2d 346 (Fla. 1st DCA 1985), and thus may serve as a valid reason for departure. Self v. State, 487 So.2d 391 (Fla. 1st DCA 1986). D. Close proximity of the various crimes, some of which occurred while defendant was on bond for earlier crimes for which he......
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Byrd v. State, 4-86-1688
...it may be used as a reason to depart from the guidelines. See, e.g., Ritts v. State, 491 So.2d 1252 (Fla. 2d DCA 1986); Self v. State, 487 So.2d 391 (Fla. 1st DCA 1986); Parker v. State, 478 So.2d 823 (Fla. 2d DCA 1985). But see Smith v. State, 484 So.2d 649 (Fla. 4th DCA 1986) ("slight" vi......
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Johnson v. State, No. BN-425
...So.2d 1045 (Fla.1986). When victim injury is not scored, it may be used as a reason for departure from the guidelines. Self v. State, 487 So.2d 391 (Fla. 1st DCA 1986). In this case, if victim injury is proven the trial court may be able to validly depart from the guidelines. Since the defe......