BRIAN VILETA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1984-08-31
No. 83-2397
GRIMES, A.C.J., and SCHOONOVER, J., concur.
454 So. 2d 792 Florida District Court of Appeal, Second District (1984) Caution
Cited by 32 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The court held that the trial court erred in using separate sentencing guideline scoresheets for different offenses and in improperly scoring the primary offense. The sentences are vacated and remanded for resentencing.


Headnotes

[1] A single guideline scoresheet must be prepared for each defendant covering all offenses pending before the court for sentencing, even if offenses occurred on different da…

[2] A first-degree felony punishable by life imprisonment should be scored as such under the sentencing guidelines, not as a life felony, unless the guidelines specifically d…

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

The defendant was sentenced for carrying a concealed firearm, armed burglary, and grand theft. The trial court used two separate sentencing guideline …

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
SCHEB, Judge.

SCHEB, Judge.

Brian Vileta challenges his sentences for carrying a concealed firearm, armed burglary, and grand theft as being imposed outside the recommended range of the sentencing guidelines. We reverse.

On February 3, 1982, the state charged defendant with carrying a concealed firearm in violation of section 790.01(2), Florida Statutes (1981). Defendant pled guilty and was placed on probation for three years. Subsequently, on April 18, 1983, an affidavit of violation of his probation was filed. Defendant pled guilty, his probation was revoked, and he was sentenced on the firearm charge on October 19, 1983.

In a separate unrelated incident, defendant was charged on July 19, 1982, with armed burglary in violation of section 810.- 02(2)1 and grand theft pursuant to section 812.014. Defendant pled guilty to these charges but failed to appear for sentencing as scheduled in January 1983. Subsequently, he came before the trial judge for sentencing at the same date and time as the sentencing for the offense for which his probation was revoked.

Defendant elected to be sentenced under the new sentencing guidelines. See In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So. 2d 848 (Fla.1983); Harrington v. State, 455 So. 2d 1317 (Fla.2d DCA 1984). In determining defendant’s sentences, the trial court used one scoresheet for the charge of carrying a concealed firearm and a separate scoresheet for the armed burglary and grand theft charges. Defendant was sentenced for sixty-six months on the armed burglary and, concurrently, sixty months on the grand theft. He received a thirty-month sentence on carrying a concealed firearm, consecutive to the armed burglary and grand theft sentences. Thus, he effectively received a total sentence of eight years.

On appeal defendant alleges a number of errors in the sentencing procedure of October 19, which resulted in his sentence being outside the recommended guidelines. First, he argues that the court erred in using two separate scoresheets to compute his sentence. He is correct. Florida Rule of Criminal Procedure 3.701(d)(1) is explicit on this point and states that only “[o]ne guideline scoresheet shall be prepared for each defendant covering all offenses pending before the court for sentencing” (emphasis added). This is true despite the fact that various offenses may have been committed by defendant on different dates. Since defendant’s “primary offense” was armed burglary, rule 3.701(d)(3), the score-sheet for carrying a concealed firearm must be stricken as incorrect. On resentencing, grand theft and carrying a concealed firearm are to be scored as additional offenses pursuant to rule 3.701(d)(4).

Defendant next correctly argues that the court erred in scoring his primary offense of armed burglary. Armed burglary is a first degree felony punishable by imprisonment for a term of years not exceeding life imprisonment. § 810.02(2), Fla.Stat. (1981). It is not a life felony. See § 775.082(3)(a) and (b). The trial judge, however, improperly scored this offense as a life felony presumably because the scoresheet for burglary offenses did not specify a point total for first-degree felonies punishable by life. Since, at the time of the sentencing, the guidelines only specified point assessments for first-degree felonies or life felonies, but nothing in between, see rule 3.988(e), the offense should have been scored as a felony of the first degree.2

The record reveals that several times during the proceedings the trial judge made remarks to the effect that he intended to deviate from the guidelines by aggravating defendant’s presumptive sentence. Nevertheless, the imposition of a total sentence of eight years was within the recommended range based on the court’s own calculations. Since these calculations were incorrect (our own calculations resulted in a presumptive sentence of only three years), the sentences are actually outside the guidelines; yet, it is not clear from the record that the trial judge really intended to depart from the guidelines. Because of this ambiguity, we decline to address at this time the contentions of the parties concerning the court’s justification for deviating from the guidelines.

Accordingly, we vacate defendant’s sentences and remand for resentencing. On remand defendant should be sentenced under the guidelines in effect on October 19, 1983, with his score to be computed in accordance with our opinion. See Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984). Of course, a sentence must be imposed for each offense, but the total sentence cannot exceed the total guideline sentence, rule 3.701(d)(12), unless the court should desire to deviate from the recommended range, whereupon it shall state in writing its reasons for doing so. Rule 3.701(d)(ll). See Addison v. State, 452 So. 2d 955 (Fla. 2d DCA 1984). We also point out that defendant’s judgment of conviction should be changed to indicate that he was charged with, and convicted of, armed burglary, a first-degree felony, rather than a second-degree felony. Should the trial court impose a sentence outside the range recommended by the guidelines, then either party may appeal after resentencing. §§ 924.06(l)(e), 924.07(9), Fla.Stat. (1983).

GRIMES, A.C.J., and SCHOONOVER, J., concur. . The information alleged a violation of section 810.02(3) when it should have alleged section 810.02(2). However, defendant clearly was aware that he was being charged with armed burglary, a violation of section 810.02(2), and no prejudice resulted to defendant due to the incorrect citation. See Wood v. State, 354 So. 2d 134 (Fla. 1st DCA), cert. denied, 361 So. 2d 836 (Fla.1978); King v. State, 336 So. 2d 1200 (Fla. 2d DCA 1976), cert. denied, 345 So. 2d 424 (Fla.), cert. dismissed, 434 U.S. 802, 98 S.Ct. 30, 54 L.Ed.2d 60 (1977).

. The guidelines were subsequently amended on May 8, 1984. The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), No. 65,216 (Fla. May 8, 1984). The new scoresheets for category five (burglary) offenses now specify a separate point assessment for first degree felonies punishable by life, in addition to life felonies and first-degree felonies.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (16 total)

  • Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)
    …7 (Fla. 1st DCA 1984); McGrath v. State, 454 So. 2d 694 (Fla. 1st DCA 1984); Hernandez v. State, 456 So. 2d 1263 (Fla. 4th DCA 1984); Ratlin v. State, 455 So. 2d 1347 (Fla. 5th DCA 1984). Multiple score sheets are impermissible Vileta v. State, 454 So. 2d 792 (Fla. 2d DCA 1984). Written statement not required if reasons for departure transcribed Harvey v. State, 450 So. 2d 926 (Fla. 4th DCA 1984); Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984); Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984); Kl…
  • Gallagher v. State, 476 So. 2d 754 (Fla. 5th DCA 1985)
    …joinder at trial are unfit for consolidation for sentencing belies the language of Florida Rule of Criminal Procedure 3.701(d)(1), which provides for “all offenses pending before the court for sentencing.” (Emphasis added). See also Vileta v. State, 454 So. 2d 792 (Fla. 2d DCA 1984).2 Normally, assignment and reassignment of cases in a multi-judge court is a matter within the internal government of that court and a party possesses no right to have a particular judge hear or not hear his case absent grounds f…
  • Yohn v. State, 461 So. 2d 263 (Fla. 2d DCA 1984)
    …3), aff'd on other grounds, 456 So. 2d 448 (Fla.1984); Miller v. State, 297 So. 2d 36 (Fla. 1st DCA 1974). Accordingly, we vacate defendant’s sentence and remand for resentencing under the guidelines in effect on March 8, 1984, see Vileta v. State, 454 So. 2d 792 (Fla. 2d DCA 1984), with her score to be computed in accordance with our opinion. DANAHY and CAMPBELL, JJ., concur.…

Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw