State v. Whitfield, No. 67320

CourtUnited States State Supreme Court of Florida
Writing for the CourtSHAW; BOYD; ADKINS
Citation487 So.2d 1045,11 Fla. L. Weekly 182
Parties11 Fla. L. Weekly 182 STATE of Florida, Petitioner, v. Willie Pearl WHITFIELD, Respondent.
Docket NumberNo. 67320
Decision Date24 April 1986

Page 1045

487 So.2d 1045
11 Fla. L. Weekly 182
STATE of Florida, Petitioner,
v.
Willie Pearl WHITFIELD, Respondent.
No. 67320.
Supreme Court of Florida.
April 24, 1986.

Jim Smith, Atty. Gen., and John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for petitioner.

Michael E. Allen, Public Defender, Paula S. Saunders, and Kathleen Stover, Asst. Public Defenders, Second Judicial Circuit, Tallahassee, for respondent.

SHAW, Justice.

This case is before us based on a certified question of great public importance. Whitfield v. State, 471 So.2d 633 (Fla. 1st DCA 1985). We have jurisdiction. Art. V, § 3(b)(4), Fla.Const.

Respondent was charged with aggravated battery in which the victim suffered serious bodily injury. The jury was instructed that it could return a verdict on aggravated assault as a lesser included offense, which it did. 1 In computing the sentencing guidelines scoresheet, the state erroneously included thirty-six points for victim injury even though victim injury is not

Page 1046

an element of aggravated assault. See Fla.R.Crim.P. 3.701(d)(7). Neither defense counsel nor the trial court noted the error and respondent was sentenced, de facto, outside the sentencing guidelines. Respondent filed a notice of appeal vesting jurisdiction in the district court of appeal, and simultaneously filed a motion under Florida Rule of Criminal Procedure 3.800 with the trial court asking that the sentence be corrected because of the erroneous assessment of victim injury points. The trial court denied the 3.800 motion without comment, presumably because it no longer had jurisdiction of the case. Respondent could have petitioned the district court to temporarily surrender jurisdiction to the trial court for consideration of the motion to correct sentence. Instead, respondent abandoned the post-conviction relief remedy and raised the issue for the first time on appeal.

In the district court, the parties agreed that it was error to assess the points for victim injury. The issue was whether respondent should be permitted to raise the issue when no contemporaneous objection had been made at trial. Relying on language in State v. Rhoden, 448 So.2d 1013, 1016 (Fla.1984), that "[t]he purpose of the contemporaneous objection rule is not present in the sentencing process because error may be corrected by a simple remand to the sentencing judge," the district court held "that a defendant's failure to contemporaneously object upon imposition of a sentence does not preclude appellate review of sentencing errors. Mitchell v. State, 458 So.2d 10 (Fla. 1st DCA 1984); Myrick v. State, 461 So.2d 1359 (Fla. 2d DCA 1984); Ramsey v. State, 462 So.2d 875 (Fla. 2d DCA 1985); Tucker v. State, 464 So.2d 211 (Fla. 3d DCA 1985)." Whitfield, 471 So.2d at 634. However, the district court was apparently troubled, and rightly so, by the implications of a rule of law which treats failure to advise the sentencing judge of error as of no consequence, and by language...

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117 practice notes
  • Carter v. State, No. SC92501.
    • United States
    • United States State Supreme Court of Florida
    • 24 May 2001
    ...guideline scoresheet." The Court added this specific language regarding scoresheet errors through our opinion in State v. Whitfield, 487 So.2d 1045, 1047 (Fla.1986), receded from on other grounds in Davis, 661 So.2d at 1196. Effective January 1, 2001, we also have added language to the rule......
  • Forehand v. State, No. BT-110
    • United States
    • Court of Appeal of Florida (US)
    • 7 April 1988
    ...1057 from the sentencing guidelines do not require a contemporaneous objection in order to be preserved for appeal, State v. Whitfield, 487 So.2d 1045 (Fla.1986). However, sentencing errors must be evident from the record in order for the appellate court to review the sentence absent a cont......
  • Beasley v. State, No. 85-1859
    • United States
    • Court of Appeal of Florida (US)
    • 12 March 1987
    ...(Fla. 5th DCA 1986); Smith v. State, 484 So.2d 649 (Fla. 4th DCA 1986); Whitfield v. State, 471 So.2d 633 (Fla. 1st DCA 1985), affirmed, 487 So.2d 1045 (Fla.1986). Since appellant was charged with attempted sexual battery, victim contact and the necessary victim injury are not necessarily e......
  • Stanley v. State, No. 86-946
    • United States
    • Court of Appeal of Florida (US)
    • 9 April 1987
    ...v. State, 458 So.2d 10 (Fla. 1st DCA 1984), review denied, 464 So.2d 556 (Fla.1985), disapproved on other grounds, State v. Whitfield, 487 So.2d 1045 (Fla.1986); Jean v. State, 455 So.2d 1083 (Fla. 2d DCA 1984); Seastrand v. State, 474 So.2d 908 (Fla. 5th DCA 4 State v. Villalovo, 481 So.2d......
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117 cases
  • Carter v. State, No. SC92501.
    • United States
    • United States State Supreme Court of Florida
    • 24 May 2001
    ...guideline scoresheet." The Court added this specific language regarding scoresheet errors through our opinion in State v. Whitfield, 487 So.2d 1045, 1047 (Fla.1986), receded from on other grounds in Davis, 661 So.2d at 1196. Effective January 1, 2001, we also have added language to the rule......
  • Forehand v. State, No. BT-110
    • United States
    • Court of Appeal of Florida (US)
    • 7 April 1988
    ...1057 from the sentencing guidelines do not require a contemporaneous objection in order to be preserved for appeal, State v. Whitfield, 487 So.2d 1045 (Fla.1986). However, sentencing errors must be evident from the record in order for the appellate court to review the sentence absent a cont......
  • Beasley v. State, No. 85-1859
    • United States
    • Court of Appeal of Florida (US)
    • 12 March 1987
    ...(Fla. 5th DCA 1986); Smith v. State, 484 So.2d 649 (Fla. 4th DCA 1986); Whitfield v. State, 471 So.2d 633 (Fla. 1st DCA 1985), affirmed, 487 So.2d 1045 (Fla.1986). Since appellant was charged with attempted sexual battery, victim contact and the necessary victim injury are not necessarily e......
  • Stanley v. State, No. 86-946
    • United States
    • Court of Appeal of Florida (US)
    • 9 April 1987
    ...v. State, 458 So.2d 10 (Fla. 1st DCA 1984), review denied, 464 So.2d 556 (Fla.1985), disapproved on other grounds, State v. Whitfield, 487 So.2d 1045 (Fla.1986); Jean v. State, 455 So.2d 1083 (Fla. 2d DCA 1984); Seastrand v. State, 474 So.2d 908 (Fla. 5th DCA 4 State v. Villalovo, 481 So.2d......
  • Request a trial to view additional results

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