DWAYNE B. TILLMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court erred in sentencing defendant under sentencing guidelines for pre-October 1, 1983 offenses without defendant's affirmative selection, but remand for record correction only is appropriate since maximum statutory sentences were imposed.
Sentencing guidelines may be applied to pre-October 1, 1983 crimes only where the defendant affirmatively selects such sentencing, and mere silence does not satisfy this requirement.
[1] For offenses committed prior to October 1, 1983, sentencing guidelines may be applied only when the defendant affirmatively selects guideline sentencing, and a defendant'…
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Join FLexlaw to unlock all legal intelligenceAppellant was sentenced to five years imprisonment for each of multiple crimes to be served consecutively for offenses committed prior to October 1, 1…
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GRIMES, Acting Chief Judge.
Appellant argues that the trial court erred in sentencing him under the sentencing guidelines. Fla.R.Crim.P. 3.701. We agree. The underlying offenses in this case were committed prior to October 1, 1983. The sentencing guidelines may be applied to crimes when the offense occurred prior to October 1, 1983, only where the defendant affirmatively selects to be sentenced under the guidelines. § 921.001(4)(a), Fla.Stat. (1983); In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So. 2d 848 (Fla.1983); Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985); Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984); Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984). Here, the record does not indicate that the appellant affirmatively selected to be sentenced under the guidelines. A defendant’s mere silence at sentencing cannot meet the affirmative selection requirement contemplated by rule 3.701. Rodriguez v. State.
Appellant received the maximum statutory sentence of five years imprisonment for each crime to be served consecutively, and the crimes were not offenses over which the trial court could retain jurisdiction. See § 947.16(3), Fla.Stat. (1983). No purpose would be served to order resentencing since the court obviously intended to impose the maximum penalties permitted by law. Accordingly, the cause is remanded with directions to correct the record to reflect that appellant was not sentenced under the guidelines. See Barnes v. State, 464 So. 2d 1333 (Fla. 2d DCA 1985).
SCHEB and CAMPBELL, JJ., concur.
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Citator
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Blackwelder v. State, 476 So. 2d 280 (Fla. 2d DCA 1985)…1984). Because it is apparent that the court intended to impose the maximum penalties provided by law for the six crimes and they were not offenses over which the court could retain jurisdiction, there is no need for resentencing. Tillman v. State, 466 So. 2d 20 (Fla. 2d DCA 1985). However, the record must be corrected to reflect that appellant was not sentenced under the guidelines for these crimes. Appellant also argues that because the statutory maximum for a first degree felony is thirty years, the tr…
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Kaymore v. State, 482 So. 2d 581 (Fla. 5th DCA 1986)…ase, 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 resentencing. See Davis v. State, 478 So. 2d 1154 (Fla. 1st DCA 1985); Tillman v. State, 466 So. 2d 20 (Fla. 2d DCA 1985). Accordingly, we affirm the sentence but remand with directions to correct the record to reflect that appellant was not sentenced under the guidelines. AFFIRMED and REMANDED for correction of the record. COBB, C.J., and ORFING…
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Davis v. State, 478 So. 2d 1154 (Fla. 1st DCA 1985)…before October 1, 1983, was treated under the guidelines even though the record contains no evidence of an affirmative selection to be treated under [*1155] the guidelines in that ease. Appellant is correct, but in this case as in Tillman v. State, 466 So. 2d 20 (Fla. 2d DCA 1985), it appears “[n]o purpose would be served to order resentencing since the court obviously intended to impose the maximum penalties permitted by law,” therefore we remand for correction of the record to show that the sentence in Ca…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Rules of Criminal Procedure (sentencing Guidelines), 439 So. 2d 848 (Fla. 1983)
- Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984)
- Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984)
- Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985)
- Barnes v. State, 464 So. 2d 1333 (Fla. 2d DCA 1985)