WILLIAM EARL HOPPER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Hopper appeals his four and one-half year sentence for armed burglary, arguing that the trial court improperly applied amended sentencing guidelines that had not yet become effective. The court reverses and remands for resentencing because the trial court relied on guidelines amendments not applicable until after Hopper's sentencing date.
The trial court erred in applying the amended guidelines retroactively. The court could not properly consider the recalculated ninety-two-point scoresheet because the amended rules were not effective until July 1, 1984, and the fact that guidelines will be amended in the future is not a valid reason for departure from existing guidelines.
[1] Sentencing guidelines in effect at the time of sentencing must be applied, and amended rules cannot be applied retroactively.
[2] A trial court errs by considering amended sentencing guidelines that were not yet in effect at the time of sentencing.
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“Since appellant was sentenced prior to July 1, 1984, and the amended rules may not be applied retroactively, the court erred to the extent it considered the recalculated scoresheet.”
Establishes the core holding that amended guidelines cannot be retroactively applied to sentencings before their effective date
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHopper was sentenced on May 17, 1984, for armed burglary, a first-degree felony. The initial guidelines scoresheet showed eighty points with a recomme…
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SCHOONOVER, Judge.
The appellant, William E. Hopper, appeals from a four and one-half year sentence for armed burglary. We reverse and remand for resentencing.
Appellant was sentenced on May 17, 1984. The guidelines scoresheet initially presented to the trial court reflected a total of eighty points and a recommended sentence of three years imprisonment. Rather than accepting this point total and sentencing appellant accordingly, the court, apparently relying upon amended rule 3.701, Florida Rules of Criminal Procedure, considered a recalculated point total of ninety-two points. The court then sentenced appellant to four and one-half years imprisonment.
Armed burglary is a first-degree felony punishable by imprisonment for a term of years not exceeding life imprisonment. § 810.02(2)(b), Fla.Stat. (1983). The guidelines category-five burglary scoresheet in effect at the time appellant was sentenced provided point assessments for a life felony and a first-degree felony, but did not assess separate points for a first-degree felony punishable by life imprisonment. The original scoresheet correctly scored appellant’s armed burglary charge as a first-degree felony, Vileta v. State, 454 So. 2d 792 (Fla. 2d DCA 1984), and correctly assessed four points against him under the prior record category.
Under amended rule 3.701, the recalculated scoresheet would also have been correct. The amended rules assess additional points for a first-degree felony punishable by life imprisonment and also provide additional points for more than four misdemeanors under the prior record category. The amended rule did not become applicable, however, until July 1, 1984. Ch. 84-328, § 3, Laws of Fla.1; The Florida Bar: Amendment to Rules of Criminal Procedure, 451 So. 2d 824 (Fla.1984). Since appellant was sentenced prior to July 1, 1984, and the amended rules may not be applied retroactively, the court erred to the extent it considered the recalculated scoresheet. Frazier v. State, 463 So. 2d 458 (Fla. 2d DCA 1985); Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984).
Furthermore, the fact that the guidelines are going to be amended in the future is not a valid reason for departure. Accordingly, since the court could not consider the amended guidelines, and the record does not provide valid reasons for departure from the guidelines, we vacate appellant’s sentence and remand for resentencing in accordance with the guidelines in effect at the time of appellant’s original sentencing. We affirm the trial court in all other respects.
Affirmed in part, reversed in part, and remanded.
GRIMES, A.C.J., and FRANK, J., concur. . See § 921.001(4)(b), Fla.Stat. (Supp.1984).
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Miller v. State, 468 So. 2d 1018 (Fla. 4th DCA 1985)…PER CURIAM. We deny appellee’s motion for rehearing. In doing so, we would like to comment on two cases dealing with the amendments to the sentencing guidelines. [*1019] Hopper v. State, 465 So. 2d 1269 (Fla. 3d DCA 1985), and Frazier v. State, 463 So. 2d 458 (Fla. 2d DCA 1985), involved situations where the trial court applied the amendments to the sentencing guidelines at a hearing that took place before the effective date of the amendment. In re…
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Huffman v. State, 611 So. 2d 2 (Fla. 2d DCA 1992)…life for some felonies, those offenses remained felonies of the first degree. § 775.082(2)(a), Fla.Stat. (1971). The fact that life is a possible penalty in such cases would not ipso facto justify scoring them as life felonies. Cf. Hopper v. State, 465 So. 2d 1269 (Fla. 2d DCA), rev. denied, 475 So. 2d 696 (Fla.1985). Second, the supreme court has drawn a clear distinction between “capital crimes,” i.e., those punishable by death, and “capital felonies.” In response to Fur-man numerous states reenacted statu…
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Theo Miller v. State, 515 So. 2d 392 (Fla. 2d DCA 1987)…minal Procedure. Dupont v. State, 514 So. 2d 1159 (Fla. 2d DCA 1987). An impending rule change has never constituted valid grounds for departing from the recommended guideline sentence, either before or after the decision in Miller. Hopper v. State, 465 So. 2d 1269 (Fla. 2d DCA), petition for review denied, 475 So. 2d 696 (Fla.1985). However, for the same reasons underlying our decision in Dupont, we believe that the appellant’s complaint is appropriate for postconviction review pursuant to rule 3.800(a), Flor…
Authorities Cited
- THE Fla. BAR: Amendment to Rules of Crim. Procedure (3.701, 451 So. 2d 824 (Fla. 1984)
- Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984)
- Vileta v. State, 454 So. 2d 792 (Fla. 2d DCA 1984)
- Freeman Frazier v. State, 463 So. 2d 458 (Fla. 2d DCA 1985)