ROBERT WILLIAM MOTYKA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Motyka appeals his 3.5-year prison sentence for leaving the scene of an accident involving deaths and injuries. The court reverses, holding that victim injury points cannot be scored for this offense because injury is not an element of the crime—one can be guilty of leaving the scene without having injured anyone.
The trial court erred in scoring victim injury. Under Florida Rule of Criminal Procedure 3.701(d)(7), victim injury shall only be scored if it is an element of the offense of conviction, and victim injury is not an element of leaving the scene of an accident—one can be convicted of this offense without having injured anyone.
[1] Victim injury shall not be scored for the offense of leaving the scene of an accident involving death or personal injuries.
[2] Victim injury is not an element of the offense of leaving the scene of an accident involving death or personal injuries.
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Join FLexlaw to unlock all legal intelligence“Victim injury is not an element of the offense in the sense that one must injure or kill someone to be guilty of the offense.”
Establishes that the statutory crime of leaving the scene does not require proof of injury as an essential element
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Join FLexlaw to unlock all legal intelligenceMotyka was involved in an automobile accident on June 23, 1983, in which two people were killed and four injured. He pleaded guilty to leaving the sce…
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MILLS, Judge.
Motyka appeals from a sentence of 3V2 years in prison following conviction for leaving the scene of an accident involving death or personal injuries. Section 316.027, Florida Statutes (1983). The issue presented is whether the trial court erred in scoring victim injury in determining the recommended range pursuant to the sentencing guidelines. The trial court erred. We reverse and remand for resentencing.
Moytka was involved in an automobile accident on 23 June 1983 in which two people were killed and four people injured. He was charged with leaving the scene of an accident involving death or personal injuries. He pleaded guilty and affirmatively elected to be sentenced under the guidelines. The difficulty arose in preparing Motyka’s score sheet.
The State contended 48 points should be assessed for victim injury, 24 points for each fatality. Assessing points for injury to the four passengers who were not killed was not urged because the information only alleged the injury or death of the two people who were killed. Defense counsel argued victim injury should not be scored. The trial court agreed with the State and assessed 48 points for victim injury.
With the added 48 points, Motyka’s total score was 152, placing him in the recommended range of 3V2-4V2 years incarceration. Had the 48 points not been added, the recommended sentence would have been any nonstate prison sanction. The trial court stated it saw no reason to deviate from the guidelines and sentenced Mo-tyka to 3V2 years in prison.
As amended on 8 May 1984, Florida Rule of Criminal Procedure 3.701(d)(7) provides: “Victim injury shall be scored if it is an element of any offenses at conviction.” 1 Section 316.027 prohibits leaving the scene of an accident involving death or personal injuries. Victim injury is not an element of the offense in the sense that one must injure or kill someone to be guilty of the offense.
The last sentence of the committee note to Rule 3.701(d)(7) provides: “Victim injury is to be scored for each victim for whom the defendant is convicted of injuring and is limited to physical trauma.” (emphasis supplied). A conviction under Section 316.-027 does not necessarily mean the defendant is guilty of injuring anyone.
Rule 3.701(d)(7), as clarified by the committee note, precludes scoring victim injury for the offense of leaving the scene of an accident involving death or personal injuries.
REVERSED and REMANDED for re-sentencing with directions that victim injury not be scored.
ERVIN, C.J., and ZEHMER, J., concur. . As originally enacted, Florida Rule of Criminal Procedure 3.701(d)(7) provided: "Victim injury shall not be scored if not a factor of an offense at conviction.” Under either version of the rule, our analysis is the same,
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Whitfield v. State, 471 So. 2d 633 (Fla. 1st DCA 1985)…aggravated assault, the offense for which defendant was convicted. Therefore, we agree with appellant that, regardless of any injury actually sustained by the victim, the trial court erred in assessing points for victim injury. See Motyka v. State, 457 So. 2d 1114 (Fla. 1st DCA 1984). Interestingly enough, appellee also agrees with appellant, but argues that this appeal should be dismissed due to appellant’s failure to contemporaneously object. We disagree. The language of the supreme court in State v. Rhode…
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Wright v. State, 487 So. 2d 1176 (Fla. 1st DCA 1986)…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…
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Smelley v. State, 500 So. 2d 318 (Fla. 1st DCA 1986)…moved from the scoresheet.2 See: Wright v. State, 487 So. 2d 1176 (Fla. 1st DCA 1986); Brown v. State, 474 So. 2d 346 (Fla. 1st DCA 1985), rev. denied, 484 So. 2d 9 (Fla.1986); Whitfield v. State, 471 So. 2d 633 (Fla. 1st DCA 1985); Motyka v. State, 457 So. 2d 1114 (Fla. 1st DCA 1984). The state argues strenuously that this court should apply the rationale of Moore v. State, 469 So. 2d 947 (Fla. 5th DCA 1985), to this case. In Moore, appellant was convicted for the offense of “lewd, lascivious or indecent ass…
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