THOMAS DWAYNE FENTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Fenton appealed his burglary conviction, challenging both the conviction classification and sentencing guidelines applied. The court affirmed the first-degree felony conviction but reversed the sentence due to the trial judge's erroneous application of guidelines that were not effective at the time of the offense and incorrect scoring as a life felony.
Fenton was properly found guilty of burglary as a first-degree felony. Under § 810.02(2) and (3), a burglary is a first-degree felony if the offender either commits an assault or battery upon a person or is armed during the commission of the burglary. The sentencing guidelines applied by the trial judge were erroneous because they were not effective at the time of the offense and scored the offense as a life felony rather than a first-degree felony.
[1] A sentence imposed under sentencing guidelines not effective at the time of the offense or plea must be reversed and remanded for resentencing under the original guidelin…
[2] A burglary is a felony of the first degree if the offender, in the course of committing the burglary, makes an assault or battery upon a person or is armed.
Previewing 2 of 3 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“We believe they reflect a clear legislative intent that if an offender, in the course of committing a burglary, makes an assault or battery upon a person or if the offender is armed, the burglary is a felony of the first degree.”
Establishes the court's interpretation of the statute: either assault/battery OR being armed is sufficient for first-degree classification
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFenton was convicted of burglary. During the commission of the burglary, Fenton committed an assault or battery upon a person but was not armed. The t…
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DANAHY, Judge.
In this appeal from a conviction for burglary, the state concedes that the trial judge erred in scoring the defendant’s primary offense as a life felony rather than a first degree felony, and also erred in scoring the defendant’s primary offense under scoring guidelines which were not effective at the time the charged offense occurred or at the time of the defendant’s plea. As suggested by the state, we reverse the sentence imposed in this case and remand for resentencing under the original sentencing guidelines with the defendant’s offense treated as a first degree felony rather than a life felony.
We do not agree with the defendant’s assertion that his offense should be treated as a felony of the second degree under section 810.02, Florida Statutes (1983).
The defendant makes a strong argument that the statute sets forth a two-pronged test — that is, categorizing a burglary as a felony of the first degree if the offender both makes an assault or battery upon a person and is also armed. The defendant argues that if there is only an assault, with no weapon involved, the burglary is a felony of the second degree. We choose to read subsections (2) and (3) of the statute together and harmonize them. We believe they reflect a clear legislative intent that if an offender, in the course of committing a burglary, makes an assault or battery upon a person or if the offender is armed, the burglary is a felony of the first degree. Though not specifically stated, the defendant’s argument tacitly tells us that he did in fact commit an assault or battery upon a person. There apparently is no dispute that the defendant was not armed.
We hold that under section 810.-02(2) and (3), the defendant was properly found guilty of a felony of the first degree. Conviction affirmed; sentence reversed and case remanded for resentencing in accordance with this opinion.
RYDER, C.J., and SCHOONOVER, J., concur.
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van Horn v. State, 485 So. 2d 1380 (Fla. 3d DCA 1986)…, I would add the actual [*1383] facts of this case in which the appellant’s sentence was increased by ten years because his sentencing was delayed by one week. . See, e.g., Richardson v. State, 472 So. 2d 1278 (Fla. 1st DCA 1985); Fenton v. State, 466 So. 2d 15 (Fla. 2d DCA 1985) (state concession); Arnett v. State, 471 So. 2d 547 (Fla. 4th DCA 1985); Mott v. State, 469 So. 2d 946 (Fla. 5th DCA 1985).…