Sharp v. State, 87-18
| Decision Date | 11 February 1988 |
| Docket Number | No. 87-18,87-18 |
| Parties | 13 Fla. L. Weekly 433 Kenneth SHARP, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
James B. Gibson, Public Defender, and Michael L. O'Neill, Asst. Public Defender, Daytona Beach, for appellant/cross-appellee.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Joseph N. D'Achille, Jr., Asst. Atty. Gen., Daytona Beach, for appellee/cross-appellant.
Kenneth Sharp appeals the trial court's denial of his motion to dismiss a charge of escape, based on the state's failure to comply with section 941.45, Florida Statutes (1985). 1 Sharp's contention that section 941.45 applies to him is patently without merit. His return to Florida from Kansas was not predicated upon a detainer lodged against him pursuant to the statute; at the time of his return, there was no "untried indictment, information, or complaint" pending against him in Florida; there was no allegation that Sharp was serving a sentence of imprisonment in Kansas; and there has been no showing that any written request for custody of Sharp was ever presented to Kansas or that such request was ever "approved, recorded, and transmitted" by a Florida court. The trial court correctly denied Sharp's motion to dismiss, since the requirements of section 941.45(4)(c), Florida Statutes (1985), do not apply to Sharp. Consequently, we affirm the judgment of conviction.
On cross-appeal the state properly contends that Sharp's sentence was erroneously computed under a category (8) offense classification, which category included escape at the time Sharp was sentenced, but not at the time the offense was committed. See Miller v. State, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). Although this error was not raised below, a contemporaneous objection is not required to correct a sentencing guideline miscalculation. State v. Whitfield, 487 So.2d 1045 (Fla.1986). Accordingly, we reverse the sentence and remand for resentencing under a category (9) scoresheet.
AFFIRMED in part; REVERSED in part; and REMANDED.
1 The relevant subsection of the statute provides:
(4) REQUEST FOR CUSTODY OR AVAILABILITY.--
(a) The appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is...
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