Trombley v. State, 5D98-2328.
| Decision Date | 17 March 2000 |
| Docket Number | No. 5D98-2328.,5D98-2328. |
| Citation | 754 So.2d 121 |
| Parties | Allen Joseph TROMBLEY, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Allen J. Trombley, Jr., Madison, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and David H. Foxman, Assistant Attorney General, Daytona Beach, for Appellee.
Trombley appeals from his judgments and sentences for driving under the influence with serious bodily injuries,1 and two counts of driving under the influence causing damage or injury.2 He raises numerous points on appeal, which we find were not preserved and are generally without merit.
The record establishes that in 1997, Trombley rear-ended another vehicle at a high speed and caused a chain reaction collision which damaged other vehicles and persons. He was charged with the crimes enumerated above, plus leaving the scene of an accident involving personal injury.3 He entered into a plea agreement which provided for a cap at the mid-range of the sentencing guidelines and payment of restitution. Pursuant to the agreement, he pled no contest and was adjudicated guilty of the three DUI crimes and was sentenced to 101.8 months (8.48 years) in prison for the first DUI count, and one year each for the others, to be served concurrently. He was also sentenced to five years in prison for three violation-of-probation cases, to be served concurrently with the others.
First Trombley argues he was sentenced to a term of imprisonment which exceeded the maximum pronounced at the plea hearing. However, he failed to preserve this point because he did not object at the sentencing hearing nor did he move to withdraw his plea.4
In any event, this point lacks merit. It is clear from the plea hearing that the court's reference to a maximum of five years for DUI with serious injuries was the statutory maximum which the court is required by Florida Rule of Criminal Procedure 3.172(c)(1)5 to inform a defendant about before accepting a plea. However, the plea agreement referred to a sentence at the mid-point of the guidelines range, which was 101.8 months. Further, at the sentencing hearing, defense counsel asked Trombley if he understood he was facing six to eight years in prison, and he responded, "yes." Although the law has changed on this point, a defendant can be sentenced to the recommended guidelines sentence even if it exceeds the statutory maximum. Fla. R.Crim. P. 3.703(d)(27).
Second, Trombley argues the trial court erred in imposing a $5,000.00 fine and costs because the plea agreement did not include them. Although the plea agreement does not specifically state a fine would be imposed for the DUI with serious injures, the agreement does note under the maximum sentence, "guidelines/$5,000.00 fine." The costs imposed are statutory costs for which the statute provides the requisite notice. See Rhodes v. State, 580 So.2d 159 (Fla.1991)
.
As to these issues, Trombley failed to preserve them for review on appeal. When the fine and costs were announced at sentencing, Trombley did not object nor did he later move to withdraw his plea. See § 924.051(3), Fla. Stat.; Fla.App. R. Proc. 9.140(b)(2)(B)(ii) and (iv).
Third, Trombley contends the trial court erred in suspending his driver's license for five years pursuant to section 322.28. That statute provides in part:
"Conviction" is defined as follows:
(10) "Conviction" means a conviction of an offense relating to the operation of motor vehicles on highways which is a violation of this chapter or any other such law of this state or any other state, including an admission or determination of a noncriminal traffic infraction pursuant to s. 318.14, or a judicial disposition of an offense committed under any federal law substantially conforming to the aforesaid state statutory provisions.
§ 322.01(10), Fla. Stat. (1997).
Trombley concedes that he was convicted of DWI in New York on June 2, 1993. He argues that his present conviction does not qualify for a five year suspension because he was "convicted" when he was sentenced on July 23, 1998, which is more than five years after the date of his New York conviction. This point was not objected to and thus it was not preserved for review. § 924.051(3), Fla. Stat. In any event, it lacks merit.
In Raulerson v. State, 699 So.2d 339 (Fla. 5th DCA 1997), rev. granted, 709 So.2d 537 (Fla.1998), this court held that the Legislature intended the term "conviction," as used in section 322.34, a similarly-related statute to the one involved in this case, to mean a determination of a defendant's guilt by way of a plea or verdict. We relied on State v. Gazda, 257 So.2d 242, 243-244 (Fla.1971): "the term `conviction' means determination of guilty by verdict of the jury or by plea of guilty, and does not require adjudication by the court." See also Fla. R.Crim. P. 3.701(d)(2). In this case, Trombley entered his plea on May 26, 1998, a time within five years of his New York conviction.
As a back-up, Trombley contends the court failed to advise him of the license suspension prior to sentencing and thus his plea was involuntary. See Daniels v. State, 716 So.2d 827 (Fla. 4th DCA 1998)
.
However, Trombley did not move to withdraw his plea and thus this issue was not preserved. Compare Daniels.
rev. dismissed, 697 So.2d 1217 (Fla.1997).
Trombley argues...
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Sims v. State, No. 5D02-2401
...where the injury is an element of the crime. See, e.g., Whipple v. State, 789 So.2d 1132, 1138 (Fla. 4th DCA 2001); Trombley v. State, 754 So.2d 121 (Fla. 5th DCA 2000); Scholz v. State, 734 So.2d 526 (Fla. 4th DCA 1999); Wendt v. State, 711 So.2d 1166 (Fla. 2d DCA 1998); Martinez v. State,......
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...that victim injury points may be assessed even when bodily injury is an inherent element of the offense. See, e.g., Trombley v. State, 754 So. 2d 121, 124 (Fla. 5th DCA 2000) (concluding that victim injury points should be assessed for conviction for offense of DUI with serious bodily injur......
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Whipple v. State, 4D00-1221.
..."double scoring," notwithstanding defendant's claim that death of victim was an element of DUI manslaughter); see also Trombley v. State, 754 So.2d 121 (Fla. 5th DCA 2000)(victim injury points could be assessed for the crime of DUI causing serious bodily injuries, even though personal injur......
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