Weekley v. State, 88-1376
| Decision Date | 21 November 1989 |
| Docket Number | No. 88-1376,88-1376 |
| Citation | 14 Fla. L. Weekly 2705,553 So.2d 239 |
| Parties | 14 Fla. L. Weekly 2705 Jeffrey Alan WEEKLEY, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender, and Robert Burke, Asst. Public Defender, for appellant.
Robert A. Butterworth, Atty. Gen., and Mark S. Dunn, Asst. Atty. Gen., for appellee.
Before HUBBART, NESBITT and JORGENSON, JJ.
The defendant was accused of meeting a woman at a Miami Beach bar, forcing her back to his apartment, and committing various acts of abuse upon her. He was found guilty of four counts of sexual battery, one count of kidnapping, and one count of aggravated battery. The trial court scored victim injury at forty points for each sexual battery for a total of one hundred and sixty points.
The defendant argues that under the 1987 version of Florida Rule of Criminal Procedure 3.701(d)(7) scoring each injury or offense committed was error. He claims that the victim's injury should have been scored only once according to its cumulative severity. We agree, vacate defendant's sentence, and remand for resentencing.
Prior to the 1987 amended version of Florida Rule of Criminal Procedure 3.701(d)(7), the computation of victim injury points was controlled by The Florida Bar re: Rules of Criminal Procedure, 482 So.2d 311, 316 (1985) and this court's decision in Walker v. State, 498 So.2d 688 (Fla. 3d DCA 1986). The committee note to that earlier rule stated:
Victim injury shall be scored for each count in which victim injury is an element of the offense, whether there are one or more victims.
The committee note relevant to Rule 3.701(d)(7) in the 1987 version of that rule, see Florida Rules of Criminal Procedure Re Sentencing Guidelines, 509 So.2d 1088, 1089-90 (Fla.1987), omitted that same language. That note contained no language instructing the scoring of multiple victim injury points for separate counts relating to the same victim. The above statement as to the scoring of victim injury was not scored over--the editorial means used to indicate deletion. Here, the statement was simply omitted, which leads to the state's argument that no deliberate change in procedure was intended. Where a criminal statute is susceptible of different interpretations, it must be construed in favor of the accused. Lambert v. State, 545 So.2d 838 (Fla.1989). Relying on Lambert, we conclude that the cumulative injury should have been considered and a...
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Weekley v. State
...trial court's oral pronouncement of sentence. However, this court reversed the defendant's sentence on other grounds. Weekley v. State, 553 So.2d 239 (Fla. 3d DCA 1989) (cumulative injury to victim should have been considered and single victim injury score Upon remand, the state outlined va......
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Dixon v. State
...permitted guidelines range provided a valid reason is given for doing so. Roberts v. State, 547 So.2d 129 (Fla.1989); Weekley v. State, 553 So.2d 239 (Fla. 3d DCA 1989). The judgments of conviction under review, however, are Affirmed in part; reversed in part and remanded. 1 It was perhaps ......
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Fretwell v. State, 90-1120
...DCA 1991); Carter v. State, 573 So.2d 426 (Fla. 5th DCA 1991); Williams v. State, 565 So.2d 838 (Fla. 1st DCA 1990); Weekley v. State, 553 So.2d 239 (Fla. 3d DCA 1989). See also Brown v. State, 581 So.2d 242 (Fla. 5th DCA 1991); Gordon v. State, 575 So.2d 736 (Fla. 4th DCA 1991); Ramsey v. ......
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McGowan v. State, 91-208
...the episode. Carter v. State, 573 So.2d 426 (Fla. 5th DCA 1991); Gordon v. State, 575 So.2d 736 (Fla. 4th DCA 1991); Weekley v. State, 553 So.2d 239 (Fla. 3d DCA 1989). Thus McGowan's scoresheet should have included only forty points for victim injury unless portions of the record not yet p......