CLARENCE SIAS, III, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the defendant's convictions were valid, but his sentences were improperly calculated under the sentencing guidelines.
The defendant was convicted of kidnapping, robbery, and sexual battery. The trial court erroneously applied sentencing guidelines as if these were lif…
The full statement of facts, procedural history, and disposition for this case are member content.
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Explore caselaw by topic → Browse Florida Rule Of Criminal Procedure 3.701(D)(1) cases and more on FLexlaw
BASKIN, Judge.
We reject as without merit appellant’s challenges to the validity of his convictions for kidnapping without a firearm, robbery without a firearm, and sexual battery without a firearm. See Heiney v. State, 447 So. 2d 210 (Fla.1984); Justus v. State, 438 So. 2d 358 (Fla.1983), cert. denied, — U.S. -, 104 S.Ct. 1332, 79 L.Ed.2d 726 (1984); Crum v. State, 172 So. 2d 24 (Fla. 3d DCA), cert. denied, 179 So. 2d 218 (Fla.1965).
We vacate the sentences, however, and remand for resentencing. The trial court and the state erroneously concluded that appellant had been convicted of “life felonies” * rendering sentencing guidelines contained in Florida Rule of Criminal Procedure 3.701 inapplicable. Sias was permitted to elect sentencing under the guidelines only in connection with his conviction for possession of a short-barreled rifle.
The kidnapping and sexual battery offenses are actually first degree felonies, §§ 787.01(2), 794.011(4), Fla.Stat. (1981), and the robbery is a second degree felony, § 812.13(c), Fla.Stat. (1981). Thus, because appellant’s highest felony convictions are for first degree felony offenses occurring before October 1, 1983, he is entitled to be sentenced under the guidelines upon his affirmative selection, In re Rules of Criminal Procedure, 439 So. 2d 848 (Fla.1983), even in the absence of a contemporaneous objection. See State v. Rhoden, 448 So. 2d 1013 (Fla.1984). Upon remand, if appellant selects sentencing under the guidelines, the state must comply with Florida Rule of Criminal Procedure 3.701(d)(1).
Convictions affirmed, sentences vacated in case No. 84-967, and cause remanded for resentencing.
*
Florida Rule of Criminal Procedure 3.701 committee note (c) states that the guidelines do not apply to capital felonies.
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Crowder v. State, 735 So. 2d 563 (Fla. 3d DCA 1999)…ackson v. State, 454 So. 2d 691, 692 (Fla. 1st DCA 1984). Accordingly, the court erred in failing to afford defendant this option. Baker v. State, 659 So. 2d 713 (Fla. 4th DCA 1995); Nealy v. State, 518 So. 2d 985 (Fla. 1st DCA 1988); Sias v. State, 464 So. 2d 1276 (Fla. 3d DCA 1985); Schmitt v. State, 458 So. 2d 1183 (Fla. 5th DCA 1984). Upon resentencing, defendant shall be permitted to elect a guidelines sentence. However, as noted in State v. Pentaude, 500 So. 2d 526, 528 (Fla.1987), this rule does not com…
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McLEOD v. State, 523 So. 2d 603 (Fla. 1st DCA 1987)…Coleman v. State, 483 So. 2d 539 (Fla. 2d DCA 1986) (concomitant offenses were noncapital offenses for which the trial court should have applied statute requiring all noncapital offenses to be adjudicated under sentencing guidelines); Sias v. State, 464 So. 2d 1276 (Fla. 3d DCA 1985) (because appellant’s highest convictions were for first degree felonies, he is entitled to a guideline sentence upon his affirmative selection); Schmitt v. State, 458 So. 2d 1183 (Fla. 5th DCA 1984) (there are no exceptions to the…
Authorities Cited
- State v. Learnhart Rhoden, 448 So. 2d 1013 (Fla. 1984)
- Heiney v. State, 447 So. 2d 210 (Fla. 1984)
- Crum v. State, 172 So. 2d 24 (Fla. 3d DCA 1965)
- In re Rules of Criminal Procedure (sentencing Guidelines), 439 So. 2d 848 (Fla. 1983)
- Buddy Earl Justus v. State, 438 So. 2d 358 (Fla. 1983)
- Crum v. State, 179 So. 2d 218 (Fla. 1965)
- Warshaw v. Lavery Inv. Co., 179 So. 2d 218 (Fla. 1965)