JAMES EDWARD DANIELS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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James Edward Daniels appealed his sentencing under Florida's sentencing guidelines, challenging the trial court's calculation of points that resulted in a 30-month prison sentence. The appellate court found that the trial court erred in charging multiple point categories that were either duplicative or unsupported by law, and remanded for resentencing.
The trial court erred in charging 18 points for prior record, 5 points for a prior conviction for a category 5 offense, and 10 points for legal constraint at the time of the offense. The court properly charged only the 30 points for the primary offense of burglary, and the sentence must be vacated and recalculated on remand.
[1] A defendant may appeal the calculation of points under the sentencing guidelines, even after pleading guilty or nolo contendere, if the right to appeal is reserved.
[2] Points for prior record may not be assessed for offenses that are part of the primary offense for which the defendant is being sentenced.
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 sole issue on appeal is whether the trial court erred in calculating the defendant's sentence under the sentencing guidelines, Rule 3.701, Florida Rules of Criminal Procedure.”
Establishes the narrowly-focused issue on appeal regarding sentencing guideline calculation
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Join FLexlaw to unlock all legal intelligenceDaniels pled guilty to burglary of a dwelling and was placed on probation. He later pled nolo contendere to probation violations and elected sentencin…
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PER CURIAM.
The sole issue on appeal is whether the trial court erred in calculating the defendant’s sentence under the sentencing guidelines, Rule 3.701, Florida Rules of Criminal Procedure. The defendant pled guilty to burglary of a dwelling and was placed on probation. He subsequently pled nolo contendere to violations of that probation and elected to be sentenced under the sentencing guidelines, specifically reserving the right to appeal the calculation of points under the guidelines.
The trial court revoked defendant’s probation, adjudicated him guilty of burglary of a dwelling and sentenced him to 30 months’ incarceration. The court calculated that the defendant should be charged with 71 points, arrived at by charging 30 points for the primary offense of burglary of a dwelling, a second degree felony; 18 points for a prior record of a single second degree felony (the burglary to which defendant had pled guilty); 5 points for a prior conviction for a category 5 offense (the burglary); a total of 8 points for a prior record of a third degree felony and two misdemeanors; and 10 points for legal constraint at the time of the offense (the probation).
It is the defendant’s contention on appeal, as it was in the trial court, that the trial court erred in charging him with other than the 30 points for the primary offense. The state acknowledges that the defendant was incorrectly charged with 18 points for a prior record; 5 points for a prior conviction for a category 5 offense; and 10 points for legal constraint at the time of the offense. With the exception of the defendant’s challenge to the 8 points scored for prior record of a third degree felony and two misdemeanors, which calculation does not appear from the record to be erroneous, we find that the defendant’s contention has merit. Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984); Duggar v. State, 446 So. 2d 222 (Fla. 1st DCA 1984); § 921.-001(4)(a), Fla.Stat. (1983).
Therefore, in accordance with the law and the state’s concession of error, we vacate the sentence imposed and remand the case to the trial court for resentencing.
Sentence vacated and case remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Higgs v. State, 470 So. 2d 75 (Fla. 3d DCA 1985)…y. It is established that a defendant being sentenced upon revocation of his probation was not under legal constraint at the time he committed the offenses which gave rise [*77] to his probation and for which he is being sentenced. Daniels v. State, 462 So. 2d 51 (Fla. 3d DCA 1984); Burke v. State, 460 So. 2d 1022 (Fla. 2d DCA 1984); Carter v. State, 452 So. 2d at 954. Accordingly, the order revoking probation is affirmed, as modified by striking the finding relative to supervision costs; the sentence impo…
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Gissinger v. State, 481 So. 2d 1269 (Fla. 5th DCA 1986)…ter scoring points for legal constraint, a trial judge may also increase the sentence by one cell pursuant to Rule 3.701(d)(14). Cf. Hendrix v. State, 475 So. 2d 1218 (Fla.1985). . Higgs v. State, 470 So. 2d 75 (Fla. 3d DCA 1985); Daniels v. State, 462 So. 2d 51 (Fla. 3d DCA 1984); Burke v. State, 460 So. 2d 1022 (Fla. 2d DCA 1984); Addison v. State, 452 So. 2d 955 (Fla. 2d DCA 1984); Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984).…
Authorities Cited
- Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984)
- Duggar v. State, 446 So. 2d 222 (Fla. 1st DCA 1984)