Smith v. State
| Decision Date | 02 February 1994 |
| Docket Number | No. 92-02574,92-02574 |
| Citation | 632 So.2d 95 |
| Parties | 19 Fla. L. Weekly D260 Rodney E. SMITH, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, Bartow, and Timothy J. Ferreri, Asst. Public Defender, Bartow, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
Rodney E. Smith challenges the sentencing scheme which resulted in his receiving four consecutive life sentences under the guidelines followed by five consecutive life sentences as a habitual violent felony offender together with applicable minimum mandatories, for a total of nine consecutive life sentences. We reverse and remand for resentencing.
The appellant was convicted after a jury trial of two counts of armed robbery and one count of sexual battery, all of which were committed with a firearm on September 4, 1991, at Little Caesar's Pizza. The appellant was subsequently convicted of three more armed robberies and three counts of armed kidnapping, committed October 16, 1991, at The Rent Club.
The appellant was sentenced in both cases at the same sentencing hearing. He received a guidelines sentence for sexual battery and the three kidnappings and a habitual violent felony offender sentence for the five robberies. The court imposed nine consecutive terms of life imprisonment each with a three-year minimum mandatory. A fifteen-year minimum mandatory was imposed consecutively for each of the five habitualized robberies, but concurrent to the three-year minimum mandatory also imposed for the robberies.
We find error in the computation of the scoresheet. The five robberies for which the appellant was habitualized were erroneously factored into the guidelines score as additional offenses at the time of the convictions. Habitualized offenses may not be used as additional offenses. Ricardo v. State, 608 So.2d 93 (Fla. 2d DCA 1992). Recomputation without the robberies would reduce the appellant's guidelines sentence. We therefore reverse for this reason.
We also reverse the guidelines sentence because the four consecutive life sentences exceed the maximum guidelines sentence. See Tutt v. State, 620 So.2d 1110 (Fla. 2d DCA 1993). The recommended sentence was life; the permitted sentence was twenty-seven years to life. After recalculating the guidelines score, the trial court must sentence the appellant within the guidelines for the sexual battery and kidnappings.
We turn now to the five robberies for which the appellant received five consecutive life sentences as a habitual violent felony offender. The trial court is not authorized under the habitual felony offender act to both enhance the sentences pursuant to the act and then to further increase the total penalty by ordering the sentences run consecutively where the offenses were committed during a single criminal episode. Hale v. State, 630 So.2d 521 (Fla.1993).
Two robberies took place on September 4, 1991 at Little Caesar's Pizza; however, they did not occur in a simultaneous manner; therefore, the sentences may run consecutively. First, the appellant robbed the sexual battery victim of her personal jewelry in the back of the store; then, he robbed the other employee at the front of the store by compelling him to remove the contents of the cash register.
Three robberies took place on October 16, 1991 at The Rent Store. First, the appellant robbed three employees of personal belongings in the back of The Rent Store; then, the appellant separated the manager from the group, took him to the front of the store, and compelled him to hand over the contents of the cash register. Thus, the sentences for the first two robberies committed simultaneously in the back of The Rent Store should run...
To continue reading
Request your trial
-
Murray v. State, 2D03-3625.
..."because they involved different victims at different locations with a temporal break, albeit brief, between them"); Smith v. State, 632 So.2d 95, 97 (Fla. 2d DCA 1994) (holding that consecutive habitual violent felony offender (HVFO) sentences were appropriate where defendant robbed one vi......
-
Buckins v. State
...2d DCA 2002); Spivey v. State, 789 So.2d 1087 (Fla. 2d DCA 2001); Anderson v. State, 779 So.2d 345 (Fla. 2d DCA 2000); Smith v. State, 632 So.2d 95 (Fla. 2d DCA 1994); Clayton v. State, 904 So.2d 660 (Fla. 5th DCA 2005); Lykins v.. State, 894 So.2d 302 (Fla. 3d DCA 2005); Hope v. State, 766......
-
Shepherd v. State
...2d DCA 2002) ; Spivey v. State, 789 So.2d 1087 (Fla. 2d DCA 2001) ; Willis v. State, 640 So.2d 220 (Fla. 2d DCA 1994) ; Smith v. State, 632 So.2d 95 (Fla. 2d DCA 1994) ; West v. State, 849 So.2d 377 (Fla. 1st DCA 2003) ; Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001) ; Brunner v. State......
-
Matthews v. State, 2D13–5207.
...(Fla. 2d DCA 2004); Boyd v. State, 880 So.2d 726 (Fla. 2d DCA 2004); Spivey v. State, 789 So.2d 1087 (Fla. 2d DCA 2001); Smith v. State, 632 So.2d 95 (Fla. 2d DCA 1994); Westberry v. State, 906 So.2d 1141 (Fla. 3d DCA 2005); Wright v. State, 834 So.2d 879 (Fla. 3d DCA 2002); Middleton v. St......