EDWARD M. BROSZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the sentencing guidelines were improperly applied to a capital felony, and this fundamental error could be raised for the first time on appeal.
Brosz was convicted of sexual battery, a capital offense, and sentenced under the sentencing guidelines. The appellate court reviewed the sentence imp…
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FRANK D. UPCHURCH, Jr., Judge.
Brosz appeals from a judgment and sentence for sexual battery. He contends his sentence was imposed in error. We agree.
Brosz was sentenced under the sentencing guidelines. Section 921.001, Florida Statutes (1983), provides for the applicability of the sentencing guidelines as follows:
(4)(a) The guidelines shall be applied to all felonies, except capital felonies, committed on or after October 1, 1983, and to all felonies, except capital felonies and life felonies, committed prior to October 1, 1983, for which sentencing occurs after such date when the defendant affirmatively selects to be sentenced pursuant to the provisions of this act.
Here, Brosz committed sexual battery in violation of section 794.011(2), Florida Statutes. This crime remains a capital offense. See Rusaw v. State, 451 So. 2d 469 (Fla.1984). Since this case involved a capital felony, the sentencing guidelines clearly do not apply.
The state’s argument that the error was waived, if not invited, is without merit. The trial court had no legislative authority to sentence Brosz under the sentencing guidelines. Such error is fundamental and may be raised for the first time on appeal. See Pettis v. State, 448 So. 2d 565 (Fla. 4th DCA 1984); Warmble v. State, 393 So. 2d 1164, 1165 (Fla. 3d DCA 1981). And, due to the prosecutor’s initiation of the sentencing guidelines error, this is not an appropriate case for application of the invited error doctrine.
Judgment AFFIRMED; sentence REVERSED and REMANDED for resentencing.
ORFINGER and SHARP, JJ., concur.
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Coleman v. State, 484 So. 2d 624 (Fla. 1st DCA 1986)…remain a “capital” offense for purposes of the requirement that the jury be constituted by twelve persons. The requirement of a twelve-person jury was held to be applicable only in those cases where death was a possible penalty. In Brosz v. State, 466 So. 2d 256 (Fla. 5th DCA 1985), the fifth district interpreted the phrase “except capital felonies” in the context of the sentencing guidelines legislation which provided that the guidelines would be applicable to all felonies “except capital felonies” committ…
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Laster v. State, 486 So. 2d 88 (Fla. 5th DCA 1986)…punishable by life imprisonment with a minimum of twenty-five years imprisonment. It is not a life felony and is not subject to a guideline sentence; it is not scored within the guidelines. Rusaw v. State, 451 So. 2d 469 (Fla.1984); Brosz v. State, 466 So. 2d 256 (Fla. 5th DCA 1985). The primary offense at sentencing, for guideline sentencing purposes, was the lewd assault. The points assessed for a prior offense of uttering a forged check should not have been added to the score-sheet because that crime wa…
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State v. Young, 579 So. 2d 380 (Fla. 5th DCA 1991)…punishable by life imprisonment with a minimum of twenty-five years imprisonment. It is not a life felony and is not subject to a guideline sentence; it is not scored within the guidelines. Rusaw v. State, 451 So. 2d 469 (Fla.1984); Brosz v. State, 466 So. 2d 256 (Fla. 5th DCA 1985). Laster v. State, 486 So. 2d 88 (Fla. 5th DCA 1986). The defendant’s conviction is affirmed but his sentence is vacated and the cause remanded to the trial court for resentenc-ing with instructions to impose, pursuant to sectio…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rusaw v. State, 451 So. 2d 469 (Fla. 1984)
- Pettis v. State, 448 So. 2d 565 (Fla. 4th DCA 1984)
- Warmble v. State, 393 So. 2d 1164 (Fla. 3d DCA 1981)