Swinson v. State, 90-2127

• Decision Date: 06 June 1991
• Docket Number: No. 90-2127,90-2127
• Citation: 579 So.2d 927
• Parties: James Willis SWINSON, Appellant, v. STATE of Florida, Appellee. 579 So.2d 927, 16 Fla. L. Week. D1520
• Court: Florida District Court of Appeals

Page 927

579 So.2d 927

James Willis SWINSON, Appellant, v. STATE of Florida, Appellee.

No. 90-2127.

579 So.2d 927, 16 Fla. L. Week. D1520

District Court of Appeal of Florida, Fifth District.

June 6, 1991.

Appeal from the Circuit Court for Brevard County; Lawrence V. Johnston, III, Judge.

James B. Gibson, Public Defender, and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Nancy Ryan, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

On the authority of Flowers v. State, 567 So.2d 1055 (Fla. 5th DCA 1990) and Walker v. State, 546 So.2d 764 (Fla. 5th DCA 1989), we affirm the defendant's sentence which is based on a scoresheet multiplying the points for legal constraint by the number of offenses committed while the defendant was under legal constraint. We certify the following question to be of great public importance (Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v)):

DO FLORIDA'S UNIFORM SENTENCING GUIDELINES REQUIRE THAT LEGAL CONSTRAINT POINTS BE ASSESSED FOR EACH OFFENSE COMMITTED UNDER LEGAL CONSTRAINT?

GRIFFIN and DIAMANTIS, JJ., concur.

COWART, J., dissents with opinion.

COWART, Judge, dissenting.

See the dissents in Flowers v. State, 567 So.2d 1055 (Fla. 5th DCA 1990); Doughty v. State, 578 So.2d 65 (Fla. 5th DCA 1991); Znajmiecki v. State, 569 So.2d 531 (Fla. 5th DCA 1990), rev. granted, 577 So.2d 1331 (Fla.1991); Natvik v. State, 574 So.2d 1230 (Fla. 5th DCA 1991); Adams v. State, 577 So.2d 963 (Fla. 5th DCA 1991). See also, contrary to the majority decision herein, Sellers v. State, 578 So.2d 339 (Fla. 1st DCA 1991); Lewis v. State, 574 So.2d 245 (Fla. 2d DCA 1991), rev. granted, 580 So.2d 753 (Fla.1991); Worley v. State, 573 So.2d 1023 (Fla. 2d DCA 1991); Scott v. State, 574 So.2d 247 (Fla. 2d DCA 1991) and Cabrera v. State, 576 So.2d 1358 (Fla. 3d DCA 1991). See also the supreme court's consideration of a petition by the Florida Sentencing Guidelines Commission to clarify the committee notes appended to Rule 3.701 d.6., wherein the commission states it was never intended to permit the scoring of "legal status points" for each offense committed while the defendant was under legal constraint, regardless of the number of offenses and that such multiple scoring sometimes results in penalties out of proportion to the offense. Florida Rules of Criminal Procedure re: Sentencing Guidelines, 576 So.2d 1307 (Fla.1991).