VERNON A. REID, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Reid appealed his burglary/assault and attempted sexual battery convictions, and this court reversed and remanded for resentencing. On remand, the trial court refused to apply the new sentencing guidelines because it characterized the proceeding as 'resentencing' rather than 'sentencing.' The appellate court held that defendants whose sentences are reversed and remanded after the guidelines' effective date may elect guidelines sentencing.
A defendant whose sentence is reversed and remanded after the sentencing guidelines become effective may elect to be sentenced under the guidelines. The statute contains no exception for cases involving resentencing, and the delay in sentencing was caused by the defendant's lawful exercise of the right to appeal, not misconduct.
[1] A defendant may elect to be sentenced under sentencing guidelines for felonies committed prior to the effective date of the guidelines, if sentencing occurs after the eff…
[2] Sentencing guidelines apply to resentencing proceedings that occur after their effective date, even if the original sentencing occurred before that date.
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“The guidelines shall be applied ... to all felonies, except capital felonies and life felonies, committed prior to October 1, 1983, for which sentencing occurs after such date when the defendant affirmatively selects to be sentenced .... ”
The statutory language establishing when guidelines sentencing applies, with no exception for resentencing cases
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Join FLexlaw to unlock all legal intelligenceReid was convicted of burglary/assault and attempted sexual battery. He was originally sentenced to 50 years for burglary/assault (with 25 years juris…
The full statement of facts, procedural history, and disposition for this case are member content.
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RYDER, Chief Judge.
The appellant was tried and found guilty of burglary/assault and attempted sexual battery. For the burglary/assault conviction, the trial court sentenced him to fifty years imprisonment and retained jurisdiction for twenty-five years. For the attempted sexual battery conviction, the court sentenced him to thirty years imprisonment and retained jurisdiction for ten years. These sentences were reversed and remanded for “resentencing” in Reid v. State, 440 So. 2d 651 (Fla. 2d DCA 1983). This opinion was issued on November 18, 1983.
At the March 7, 1984 resentencing hearing, the appellant attempted to elect to be sentenced under the sentencing guidelines, Florida Rule of Criminal Procedure 3.701, which became effective on October 1, 1983. During the hearing, appellant argued that under the guidelines the recommended sentence range for his convictions was three and one-half to four and one-half years imprisonment. The court ruled that the guidelines did not apply to this case on the ground that, according to Reid, supra, the proceeding was a “resentencing” rather than a “sentencing.” The court reasoned that because the guidelines did not apply when the appellant was originally sentenced, they did not apply when he was resentenced. Thereafter, the court sentenced the appellant to fifty years on the burglary/assault conviction and fifteen years on the attempted sexual battery conviction. The court retained jurisdiction over one-third of each sentence.
Section 921.001(4)(a), Florida Statutes (1983), provides that: “[t]he guidelines shall be applied ... to all felonies, except capital felonies and life felonies, committed prior to October 1, 1983, for which sentencing occurs after such date when the defendant affirmatively selects to be sentenced .... ” These guidelines were adopted by the legislature and approved by the Florida Supreme Court. There is no exception in the guidelines for the omission of those cases where a sentence has been reversed and remanded for resentencing. Cf Boyett v. State, 452 So. 2d 958, 959 (Fla. 2d DCA 1984).
In this case, the appellant’s sentence was reversed by this court after October 1, 1983. Our sister court has ruled that even where a delay until after October 1, 1983 has been caused by a defendant’s own misdeed, the defendant may still elect guidelines sentencing. Knight v. State, 455 So. 2d 457 (Fla. 1st DCA 1984) (defendant failed to appear at -initial sentencing hearing); Query v. State, 455 So. 2d 554 (Fla. 1st DCA 1984) (defendant was a fugitive from justice for over one year). The delay in the imposition of appellant’s legal sentence was due to his exercising his right to appeal. He is entitled to elect guidelines sentencing.
In reviewing the record on appeal, we note that the March 7, 1984 judgment on remand after the first appeal reflects that the court sentenced the appellant to the maximum sentence for a second degree felony (fifteen years), but listed the crime as a first degree on the judgment. Upon remand, the trial court should correct this error so that the proper number of points are assessed when calculating the guidelines sentence.
Reversed and remanded to allow the appellant to be sentenced under the guidelines.
CAMPBELL and LEHAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Chippas v. State, 482 So. 2d 528 (Fla. 5th DCA 1986)…of the judgment and sentence. The Florida Bar Re Amendment to Rules of Criminal Procedure (Rule 3.850), 460 So. 2d 907 (Fla.1984). Here Chippas was entitled to elect sentencing under the guidelines at his re-sentencing hearing. See Reid v. State, 460 So. 2d 921 (Fla. 2d DCA 1984). However, the denial of his request to be sentenced under the guidelines was known at the time of sentencing and the alleged error could have been raised on direct appeal. Since the motion raised an issue which could have been add…
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Reid v. State, 488 So. 2d 913 (Fla. 2d DCA 1986)…ase involving a departure from the recommended sentence, we reverse and remand for resentencing. Defendant was convicted of burglary/assault and attempted sexual battery. At his resentencing following our remand in an earlier appeal, Reid v. State, 460 So. 2d 921 (Fla. 2d DCA 1984), which had been preceded by a still earlier appeal, Reid v. State, 440 So. 2d 651 (Fla. 2d DCA 1983), he was sentenced to fifty years for the burglary/assault conviction and fifteen years for the attempted sexual battery convictio…
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Dobbs v. State, 473 So. 2d 28 (Fla. 5th DCA 1985)…y in which the trial court imposed the retention, 454 So. 2d 73. The defendant filed a pro se motion seeking to be sentenced under the Sentencing Guidelines which the trial court properly denied. The appellant mistakenly relies upon Reid v. State, 460 So. 2d 921 (Fla. 2d DCA 1984). In that case, the district court reversed the entire sentence as it was in excess of the legal maximum sentence. In affirming the trial court’s justification for retention, this court limited the resen-tencing to the correction…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Knight v. State, 455 So. 2d 457 (Fla. 1st DCA 1984)
- Coye Elliott Boyett v. State, 452 So. 2d 958 (Fla. 2d DCA 1984)
- Reid v. State, 440 So. 2d 651 (Fla. 2d DCA 1983)
- Query v. State, 455 So. 2d 554 (Fla. 1st DCA 1984)