Thomas v. State, 1D02-2750.
Decision Date | 29 June 2004 |
Docket Number | No. 1D02-2750.,1D02-2750. |
Parties | Kevin L. THOMAS, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Nancy A. Daniels, Public Defender; Fred Parker Bingham, II, Special Assistant Public Defender, Tallahassee, for Appellant.
Charlie Crist, Attorney General; Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
Appellant, Kevin L. Thomas, appeals his convictions and sentences for first-degree murder and aggravated child abuse. We affirm appellant's convictions without further discussion but reverse appellant's sentence for the aggravated child abuse offense and remand for resentencing. On appeal, the State concedes that, because the offenses at issue were committed in January 1998, the trial court should have utilized a guidelines scoresheet pursuant to Florida Rule of Criminal Procedure 3.991 instead of a Florida Rule of Criminal Procedure 3.992 guidelines scoresheet in sentencing appellant for this offense. See Fla. R.Crim. P. 3.703(a) ( ). The State also concedes that the sentencing guidelines do not apply to capital felonies and, as such, the trial court should not have included the first-degree murder offense in its calculation. See § 921.001(4)(b)2., Fla. Stat. (1997) ( ); see also Nixon v. State, 572 So.2d 1336, 1346 n. 5 (Fla.1990)
( ); Seccia v. State, 786 So.2d 12, 15 (Fla. 1st DCA 2001) ( ); Green v. State, 696 So.2d 488, 489 (Fla. 3d DCA 1997) ( ). On remand, the trial court may consider whether a departure sentence is appropriate for the aggravated child abuse offense and provide written reasons to support such a sentence. See Sailor v. State, 701 So.2d 673, 673 (Fla. 1st DCA 1997) (...
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