JAMES DARRELL TONEY, A/K/A JAMES N. TONEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Second District Court of Appeal affirmed James Toney's fifteen-year armed robbery sentence but agreed that the trial court erred by including seven points for victim injury on the sentencing guideline scoresheet, where victim injury was not an element of the armed robbery conviction. The court struck the erroneous points but upheld the sentence because it remained within the appropriate guideline range.
Victim injury points should not be assessed when victim injury does not constitute an element of the convicted offense. The seven points for victim injury were erroneously included in Toney's scoresheet because victim injury is not an element of armed robbery. However, the fifteen-year sentence was affirmed because even with the erroneous points struck, the resulting score of 234 points remained within the appropriate guideline range of 230-292 points for a twelve- to seventeen-year sentence.
[1] Victim injury points shall not be scored if not a factor of an offense at conviction.
[2] Victim injury is to be scored for each victim for whom the defendant is convicted of injuring and is limited to physical trauma.
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Join FLexlaw to unlock all legal intelligence“Victim injury shall not be scored if not a factor of an offense at conviction.”
Establishes the rule that victim injury points should only be assessed when victim injury is an element of the convicted offense.
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Join FLexlaw to unlock all legal intelligenceJames Toney was convicted of armed robbery under section 812.13, Florida Statutes. He was sentenced on November 23, 1983. The trial court prepared a s…
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BOARDMAN, Acting Chief Judge.
We affirm appellant’s fifteen-year sentence for armed robbery under section 812.-13, Florida Statutes (1983). We agree with appellant’s contention, however, that the sentencing guideline scoresheet prepared in conjunction with this case incorrectly assessed seven points against appellant for slight victim injury.
When appellant was sentenced on November 23, 1983, Florida Rule of Criminal Procedure 3.701(d)(7) provided that “ [victim injury shall not be scored if not a factor of an offense at conviction.” Committee Note (d)(7) to the rule explained that the foregoing provision
implements the intention of the commission that points for victim injury be added only when the defendant is convicted of an* offense (scored as either primary or additional offense) which includes physical impact or contact. Victim injury is to be scored for each victim for whom the defendant is convicted of injuring and is limited to physical trauma.
In May, 1984, the supreme court approved an amendment to rule 3.701(d)(7) which provides: “Victim injury shall be scored if it is an element of any offenses at conviction.” The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So. 2d 824 (Fla.1984) (emphasis added). The court noted that this change “makes clear that victim injury points are to be included when physical injury is an element of an offense at conviction.” Amendment to Rules of Criminal Procedure, at 824 n.*.
In light of this clarification, we agree that points for victim injury should not have been assessed against appellant when victim injury does not constitute an element of the convicted offense of armed robbery. The trial court undoubtedly would have reached the same conclusion had it had benefit of the supreme court’s subsequent clarification.
The erroneous inclusion of seven points for slight victim injury in appellant’s guideline computation in no way alters the correctness of the trial court’s ultimate sentencing decision. Deduction of the challenged points reduces appellant’s total score to 234 points, a total clearly within the 230-292 point range which corresponds to a recommended sentence of twelve to seventeen years for category three offenses. Accordingly, we strike the seven points assessed for victim injury but affirm the court’s sentencing decision in all other respects.
AFFIRMED as modified.
SCHOONOVER and LEHAN, JJ., concur.
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Cited By (14 total)
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Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)…ctim ⅛ injuries both physical and psychological may permit departure Williams v. State, 454 So. 2d 790 (Fla. 5th DCA 1984); Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984); Williams v. State, 454 So. 2d 751 (Fla. 1st DCA 1984); Toney v. State, 456 So. 2d 559 (Fla. 2d DCA 1984). Defendant on a crime spree can be aggravated Manning v. State, 452 So. 2d 136 (Fla. 1st DCA 1984). Non-rehabilitative career criminals warrant departure Young v. State, 455 So. 2d 551 (Fla. 1st DCA 1984); [*41] Kiser v. State…
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Bernie I. Parker v. State, 478 So. 2d 823 (Fla. 2d DCA 1985)…, Judge. In a motion for rehearing, the state urges this court to recede from its position that victim injury points cannot be scored under Florida Rule of Criminal Procedure 3.701(d)(7) for the crime of robbery. We have so held in Toney v. State, 456 So. 2d 559 (Fla. 2d DCA 1984), Hendry v. State, 460 So. 2d 589 (Fla. 2d DCA 1984), and now in the instant case. We decided to consider this question en banc. See Fla.R.App.P. 9.331(c)(1). The robbery statute, section 812.-13(1), provides: “Robbery” means t…1 / 2
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Hendry v. State, 460 So. 2d 589 (Fla. 2d DCA 1984)…d on the victim by either appellant or his partner or both. This court has recently held that points for victim injury should not be assessed because victim injury does not constitute an element of the offense of armed robbery. See Toney v. State, 456 So. 2d 559 (Fla. 2d DCA 1984). Accordingly, victim injury points should not have been included in the score-sheet, because victim injury is not an element of the convicted offenses of robbery, armed robbery, or grand theft. We reverse appellant’s sentence…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- THE Fla. BAR: Amendment to Rules of Crim. Procedure (3.701, 451 So. 2d 824 (Fla. 1984)