Wilkerson v. State, BE-452

Citation11 Fla. L. Weekly 45,480 So.2d 213
Decision Date23 December 1985
Docket NumberNo. BE-452,BE-452
Parties11 Fla. L. Weekly 45 Terry Joe WILKERSON, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

Michael E. Allen, Public Defender and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.

Jim Smith, Atty. Gen., and Royall P. Terry, Jr., Asst. Atty. Gen., Tallahassee, for appellee.

WIGGINTON, Judge.

Appellant appeals his guidelines sentence imposed after acceptance of his nolo contendere plea to a charge of lewd assault upon a child. He challenges the trial court's application of a 1984 amendment to Florida Rule of Criminal Procedure 3.701(d)(5)(c) in assessing his guidelines score. In light of a recent ruling of the Florida Supreme Court in State v. Jackson, 478 So.2d 1054 (Fla.1985), we affirm.

The offense with which appellant was charged occurred on March 28, 1984, and appellant entered his nolo plea on October 30, 1984. Judgment and sentence were entered on January 8, 1985. On May 28, 1981, appellant had been convicted in juvenile court of lewd assault. The guidelines scoresheet prepared on appellant assessed eighty points for the May, 1981, conviction, giving him a total point score of 232, resulting in a recommended prison sentence of four and one-half to five and one-half years.

The original version of rule 3.701(d)(5)(c) provided that certain juvenile dispositions which occurred within three years of the current conviction shall be included in a defendant's prior record for scoring purposes. However, that rule was amended, effective July 1, 1984, to provide that certain juvenile dispositions which occurred within three years of the commission of the instant offense may be scored as prior record. At the sentencing hearing, defense counsel argued that since the present offense occurred prior to the effective date of the amendment, the original rule should apply in appellant's case; and, if the original rule applies, the prior conviction should not be scored since it occurred more than three years prior to the conviction in the instant case. The trial judge rejected defense counsel's argument and imposed the maximum sentence of sixty-six months (or five and one-half years), within the recommended guidelines range.

Numerous recent decisions from this Court have held that a disadvantageous guidelines amendment may not be applied when a defendant's crimes were committed before the effective date of the change. In Richardson v. State, 472 So.2d 1278 (Fla. 1st DCA 1985), the court stated:

The amended guidelines expose appellant to a greater penalty than the guidelines in effect on the date of his offenses and thus application of the guidelines would be ex post facto and unconstitutional.

See also Beggs v. State, 473 So.2d 9 (Fla. 1st DCA 1985); Dewberry v. State, 472 So.2d 792 (Fla. 1st DCA 1985); Ennis v. State, 475 So.2d 713 (Fla. 1st DCA 1985); Schmidt v. State, 475 So.2d 278 (Fla. 1st DCA 1985).

In the instant case, if appellant's guidelines scoresheet had been prepared pursuant to the original rule, appellant would have had a total of 152 points which would have resulted in a recommended sentence of community control or twelve to thirty months' incarceration. Thus, obviously, the amendment to the guidelines was disadvantageous to appellant and under the above authorities, application of the amendment in this case would be considered error. However, in Jackson, the supreme court quashed that portion of this Court's ruling in Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984), in which this Court determined that, upon resentencing on remand, Jackson was entitled to be sentenced under the guidelines in effect at the time of the imposition of the sentence being reviewed (which was a sentencing on probation violation). Noting that the presumptive sentence established by the guidelines (which had been amended between the time of the sentencing on probation violation and the remand by this Court) did not change the statutory limits of the sentence to be imposed, the supreme court concluded in Jackson that

... a modification in the sentencing guidelines procedure, which changes how a probation violation should be counted in determining a presumptive sentence, is merely a procedural change, not requiring the application of the ex post facto doctrine.... We reject Jackson's contention that Weaver v. Graham, ...

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12 cases
  • Van Horn v. State, 84-2274
    • United States
    • Florida District Court of Appeals
    • April 8, 1986
    ...to withdraw the guilty plea 3--on the authority of State v. Jackson, 478 So.2d 1054 (Fla.1985). As did the courts in Wilkerson v. State, 480 So.2d 213 (Fla. 1st DCA 1985) and Carter v. State, 483 So.2d 740 (Fla. 5th DCA 1986), we certify to the Supreme Court of Florida that this decision pa......
  • Palmer v. State
    • United States
    • Florida District Court of Appeals
    • March 20, 1986
    ...the sentencing guidelines. Dewberry v. State, 472 So.2d 792, 793 (Fla. 1st DCA 1985), receded from on other grounds, Wilkerson v. State, 480 So.2d 213 (Fla. 1st DCA, 1985). In Bordeaux v. State, 471 So.2d 1353, 1354 (Fla. 1st DCA 1985), we previously answered the question of whether prior m......
  • Kelly v. State, BH-124
    • United States
    • Florida District Court of Appeals
    • July 2, 1986
    ...have been held abandoned by the Supreme Court's decision in State v. Jackson, 478 So.2d 1054 (Fla.1985). See Wilkerson v. State, 480 So.2d 213 (Fla. 1st DCA 1985); State v. Taylor, 487 So.2d 294 (Fla.1986). Therefore, it is the rule in effect at sentencing which should However, even though ......
  • Carter v. State, 85-562
    • United States
    • Florida District Court of Appeals
    • January 16, 1986
    ...concur. ON PETITION FOR REHEARING ORFINGER, Judge. The petition for rehearing is denied. However, as did the court in Wilkerson v. State, 480 So.2d 213 (Fla. 1st DCA, 1985), we certify to the Supreme Court of Florida, the following question as one of great public WHETHER ALL SENTENCING GUID......
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