HAROLD S. JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnson appealed the trial court's denial of his motion to reconsider his concurrent three-year sentences for forgery and uttering, seeking to apply the newly adopted Florida sentencing guidelines. The appellate court affirmed, holding that Johnson waived his right to elect application of the guidelines by failing to make the required election at the time of sentencing while represented by counsel.
The court held that Johnson waived his right to elect application of the sentencing guidelines by failing to make the required election at the time of sentencing while represented by counsel. Permitting election after the court's pronouncement of sentence would allow retrospective selection of options not contemplated by the rule.
[1] A defendant waives the right to elect application of sentencing guidelines to offenses committed prior to the rule's adoption if the defendant fails to make the election…
[2] Sentencing guidelines are not applicable to offenses committed prior to their adoption unless affirmatively selected by the defendant at sentencing.
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Join FLexlaw to unlock all legal intelligence“The sentencing guidelines adopted herein will be effective for all applicable offenses committed after 12:01 a.m., October 1, 1983 and, if affirmatively selected by the defendant, to sentences imposed after that date for applicable crimes occurring prior thereto.”
Establishes that the guidelines required affirmative selection by the defendant and could apply to pre-October 1983 crimes if selected for post-October 1983 sentences.
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Join FLexlaw to unlock all legal intelligenceJohnson pled guilty on April 4, 1983 to charges of forgery and uttering. He was sentenced on November 22, 1983 to two concurrent three-year sentences.…
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WENTWORTH, Judge.
Appellant Johnson asserts that the trial court erred in denying his motion to reconsider two concurrent three-year sentences, and to permit his election of Fla.R.Crim.P. 3.7011 sentencing guidelines to apply to the sentences imposed herein on November 22, 1983, upon charges of forgery and uttering to which appellant pled guilty on April 4,1983. We affirm because the state properly asserts waiver based on appellant’s failure at the time of sentencing, while represented by counsel, to elect application of the rule. Appellant responded at length, in mitigation, to the court’s request for statement of any cause precluding sentence by the court as provided by law, without reference by appellant or his counsel to the required election under the rule. Absent election, the sentences imposed for offenses committed prior to adoption of the rule were plainly not subject to the guidelines. To permit election after the court’s pronouncement of sentence would, in our opinion, permit a retrospective selection of options not contemplated by the rule.
The state’s waiver argument before the trial court, however, was based on other facts, i.e., appellant’s failure to appear for scheduled sentencing on May 16, 1983. We do not on the record before us find that failure to be sufficient to forfeit all rights under the rule in the later sentencing hearing. But the state’s alternative argument here adequately supports the ruling below, and we find no merit in appellant’s contention that estoppel should bar our determination of waiver on that ground. No detrimental reliance or other inequity is shown in these circumstances.
Affirmed.
BOOTH, J., concurs.
ERVIN, C.J., dissents w/opinion.
. In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So. 2d 848, 849 (Fla.1983), the Florida Supreme Court stated that:
The sentencing guidelines adopted herein will be effective for all applicable offenses committed after 12:01 a.m., October 1, 1983 and, if affirmatively selected by the defendant, to sentences imposed after that date for applicable crimes occurring prior thereto.
ERVIN, Chief Judge,
dissenting.
I would reverse the sentence and remand the cause for sentencing under the guidelines. Although defense counsel failed to make a contemporaneous objection at the precise time the sentence was imposed, it appears that shortly thereafter he orally moved to correct the two sentences, contending that the new guidelines should apply to the sentences prescribed. The majority now states that the appellant’s failure to make a timely election to sentencing under the guidelines waives his right to raise the alleged error on appeal. To this holding I dissent on the same ground previously stated in my dissent in Cofield v. State, 453 So. 2d 409 (Fla. 1st DCA 1984).
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Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)…a. 1st DCA 1984); Moore v. State, 455 So. 2d 535 (Fla. 1st DCA 1984). Conviction prior to effective date does not prevent election to use guidelines but election may be waived Query v. State, 455 So. 2d 554 (Fla. 1st DCA 1984); Johnson v. State, 453 So. 2d 411 (Fla. 1st DCA 1984); Harms v. State, 454 So. 2d 689 (Fla. 1st DCA 1984); Carroll v. State, 454 So. 2d 791 (Fla. 5th DCA 1984); Olsen v. State, 458 So. 2d 772 (Fla. 4th DCA 1984); Duggar v. State, 446 So. 2d 222 (Fla. 1st DCA 1984); Boyett v. St…
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Harms v. State, 454 So. 2d 689 (Fla. 1st DCA 1984)…eit or waive “as a matter of law” his right to elect the guidelines for a sentence imposed after their effective date. The text of the rule, the opinion of the Court adopting it,3 and analogous precedent all negate such waiver. See Johnson v. State, 453 So. 2d 411 (Fla. 1st DCA 1984); Duggar v. State, 446 So. 2d 222 (Fla. 1st DCA 1984); Johnson v. State, 371 So. 2d 556 (Fla. 2d DCA 1979). A failure to appear under the circumstances shown in this case may, of course, be subject to independent statutory penalty…
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Query v. State, 455 So. 2d 554 (Fla. 1st DCA 1984)…d under the guidelines. The court created no exception for fugitives from justice or others who cause sentencing proceedings which ordinarily would have been held pri- or to October 1, 1983, to be delayed until after that date. See Johnson v. State, 453 So. 2d 411 (Fla. 1st DCA 1984); Duggar v. State, 446 So. 2d 222 (Fla. 1st DCA 1984). REVERSED and REMANDED for re-sentencing. SHIVERS and ZEHMER, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Rules of Criminal Procedure (sentencing Guidelines), 439 So. 2d 848 (Fla. 1983)
- Cofield v. State, 453 So. 2d 409 (Fla. 1st DCA 1984)