MICHAEL SCOTT IRVING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Sentences imposed under the sentencing guidelines were illegal because the defendant did not affirmatively elect to be sentenced under the guidelines for crimes committed prior to October 1, 1983.
Defendant pleaded guilty to kidnapping, sexual battery, and simple battery charges, all committed before October 1, 1983. The trial court imposed sent…
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ORFINGER, Judge.
Defendant appeals from sentences which he contends were illegally imposed under the sentencing guidelines,1 following his plea of guilty to various charges. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.140(b)(1), and we reverse.
Defendant plead guilty to one count of kidnapping, two counts of sexual battery, and one count of simple battery, all of which the State charged he had committed on June 13, 1983. The sentences imposed are within the range recommended on the guidelines scoresheet, but defendant contends that he never elected to be sentenced under the guidelines, and that absent such election, the guidelines sentences cannot be imposed here.
Section 921.001(4)(a), Florida Statutes (1983) specifically makes the guidelines applicable to all felonies, except capital felonies, committed on or after October 1, 1983, and to all felonies, except capital and life felonies, committed prior to October 1, 1983, where sentencing occurs after that date “when the defendant affirmatively selects to be sentenced pursuant to the provisions of this act.” There is nothing in the record here indicating either an oral or written selection by the defendant to be sentenced under the guidelines. Because the crimes were committed prior to October 1, 1983, absent such selection, the guidelines sentences entered here were improper. The sentences are hereby vacated and the cause is remanded to the trial court for resentencing.
REVERSED and REMANDED.
DAUKSCH and COWART, JJ„ concur. . Fla.R.Crim.P. 3.701.
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Hale v. State, 486 So. 2d 93 (Fla. 5th DCA 1986)…e Sentencing Guidelines for a crime which occurred before the effective date of those guidelines. Because appellant did not affirmatively elect to be sentenced under the guidelines, we quash the sentence and remand for resentencing. Irving v. State, 464 So. 2d 672 (Fla. 5th DCA 1985); Hart v. State, 464 So. 2d 592 (Fla. 2d DCA 1985). REVERSED and REMANDED. UPCHURCH, J., concurs. SHARP, J., concurs specially with opinion.…1 / 2
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Ames v. State, 470 So. 2d 94 (Fla. 5th DCA 1985)…la. 2d DCA 1984); Mack v. State, 458 So. 2d 347 (Fla. 5th DCA 1984); Boyett v. State, 452 So. 2d 958 (Fla. 2d DCA 1984) Aff'd. State v. Boyett, 467 So. 2d 997 (Fla.1985); Duggar v. State, 446 So. 2d 222 (Fla. 1st DCA 1984). See also Irving v. State, 464 So. 2d 672 (Fla. 5th DCA 1985). The order revoking appellant’s probation is affirmed. The sentence is hereby vacated and the cause is remanded to the trial court for resentencing. AFFIRMED in part; REVERSED. ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., con…
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Kaymore v. State, 482 So. 2d 581 (Fla. 5th DCA 1986)…substantive offense occurred prior to the effective date of the guidelines and Kaymore did not affirmatively ask to be sentenced under the guidelines. Under these circumstances, we normally would reverse and remand for resentencing. Irving v. State, 464 So. 2d 672 (Fla. 5th DCA 1985); Favors v. State, 473 So. 2d 815 (Fla. 2d DCA 1985). In this case, however, the record reveals that the trial court obviously would have imposed the maximum statutory penalty in any event, and no purpose would be served by resent…
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