Wright v. State, BE-326

• Decision Date: 29 April 1986
• Docket Number: BE-326
• Citation: 487 So.2d 1176,11 Fla. L. Weekly 985
• Court: Florida District Court of Appeals
• Parties: 11 Fla. L. Weekly 985 Jonathan Craig WRIGHT, Appellant, v. STATE of Florida, Appellee.

Page 1176

487 So.2d 1176

11 Fla. L. Weekly 985

Jonathan Craig WRIGHT, Appellant, v. STATE of Florida, Appellee.

BE-326.

District Court of Appeal of Florida First District.

April 29, 1986.

Michael E. Allen, Public Defender, Larry G. Bryant, Asst. Public Defender, for appellant.

Jim Smith, Atty. Gen., John M. Koenig, Jr., Asst. Atty. Gen., for appellee.

SHIVERS, Judge.

This is an appeal of a judgment rendered after jury trial and of a sentence imposed pursuant to the sentencing guidelines. We affirm in part, reverse, and remand.

Appellant, defendant below, was charged by amended information with two counts of attempted first-degree murder with a firearm, four counts of armed robbery, and three counts of attempted armed robbery. The evidence presented at the four-day jury trial showed that appellant entered the rear door of a Jacksonville life insurance company on the afternoon of January 6, 1984, carrying a pistol and several pieces of rope. Seven persons who were inside the building at the time were ordered to lie face down on the floor and their hands were tied behind their backs. Four of the seven people were ordered to remove their wallets from their pockets or purses before their hands were tied. At some point during the commission of the crime, several police officers arrived on the scene. In the struggle to subdue the appellant, two police officers, Bryan and Brown, were shot by the appellant. Officer Brown was only slightly wounded whereas Officer Bryan sustained severe injuries. The appellant himself was slightly injured when another officer, Hammond, hit him on the head with the butt of a gun in order to subdue him.

The jury found appellant guilty of two counts of attempted second-degree murder, four counts of armed robbery, and three counts of attempted armed robbery. He was sentenced, outside of the guidelines, to forty years on each of the armed robbery counts, thirty years on each attempted second-degree murder count, and fifteen years on each attempted armed robbery count. The sentencing guidelines scoresheet, using attempted second-degree murder as the primary offense, recommended a range of seventeen to twenty-two years. The court listed eight reasons for departure from the guidelines. Appellant now raises several issues on appeal, two of which we find require reversal.

Appellant first submits that the trial court erred in using the sentencing guidelines scoresheet in effect at the time of his sentencing as opposed to the scoresheet in effect at the time of the offense. In light of the supreme court's ruling in State v. Jackson, 478 So.2d 1054 (Fla.1985), we affirm. Although use of the amended guidelines was disadvantageous to appellant, the court's decision in Jackson has been interpreted as holding that the sentencing guidelines are procedural in nature and do not require application of the ex post facto doctrine. Therefore, the guidelines in effect at the time of the most recent sentencing will be applied. Wilkerson v. State, 480 So.2d 213 (Fla. 1st DCA 1985).

We also find appellant's second argument to be without merit. All eight of the court's written reasons for departure were valid and, therefore, the court did not err in departing from the sentencing guidelines.

We agree, however, with appellant's third argument, that the court erred in assessing twenty-eight points for victim injury to Officers Brown and Bryan. According to Rule 3.701(d)(7), Fla.R.Crim.P., victim injury "shall be scored if it is an element of any offenses at conviction." Since victim injury is not a necessary element of either attempted second-degree murder, armed robbery, or attempted armed robbery, the twenty-eight points must be removed from the scoresheet. See Whitfield v. State, 471 So.2d 633 (Fla. 1st DCA 1985) and Motyka v. State, 457 So.2d 1114 (Fla. 1st DCA 1984). ¹ We therefore reverse and remand for the removal of twenty-eight points from the sentencing guidelines scoresheet.

On remand, the court is also directed to strike the provision retaining jurisdiction over one third of appellant's sentence on Count One. Since appellant was sentenced under the sentencing guidelines, retention of jurisdiction over any portion of the sentence was clearly erroneous. Bradley v. State, 468 So.2d 378 (Fla. 1st DCA 1985).

Appellant next argues that the court erred in denying his motion to suppress and his motion for judgment of acquittal. We find both of these arguments to be without merit.

A hearing on appellant's motion to suppress statements, admissions, and confessions was held in May of 1984. At the hearing, the State presented the testimony of appellant himself, and of Detectives Eason and Japour, who conducted the interrogation of the appellant at the police station on the day of the crime. According to Detective Eason's testimony, Eason introduced himself to appellant by giving his name and asking appellant his name. After appellant refused to state his name, Eason advised him of his rights. Appellant then signed a form indicating that he understood his rights, and spoke freely and voluntarily about a number of topics, including the events surrounding the crime. His statement...