WILLIAM A. KIMSEY, A/K/A WILLIAM KINSEY, A/K/A WILLIAM CLINE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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William Kimsey challenges his sentencing under Florida's sentencing guidelines for a firearm possession offense committed in July 1983. The appellate court holds that because the offense predated October 1, 1983, sentencing under the guidelines required the defendant's affirmative selection, which was not established on the record, and therefore vacates the sentence for resentencing.
The court holds that mere silence by the defendant cannot constitute affirmative selection to be sentenced under the guidelines; there must be a clear and unequivocal choice made on the record. Because no such affirmative selection appears in this case, the sentence is vacated and the case is remanded for resentencing, at which point the defendant may elect to be sentenced under the guidelines or under pre-guideline law.
[1] Sentencing guidelines may be applied to crimes committed prior to October 1, 1983, only if the defendant affirmatively selects to be sentenced under the guidelines.
[2] A defendant's silence or discussion of sentencing guidelines at a hearing does not constitute an affirmative selection to be sentenced under the guidelines.
Previewing 2 of 5 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“mere silence by the defendant at sentencing cannot meet the requirement of an affirmative selection as 'there must be a clear and unequivocal choice made on the record.'”
Establishes the controlling legal standard that defendant's silence is insufficient; affirmative selection must be explicit and unambiguous.
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Join FLexlaw to unlock all legal intelligenceWilliam Kimsey was convicted of possession of a firearm by a felon, committed on July 10, 1983. At sentencing, the trial judge discussed the guideline…
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DANAHY, Judge.
In this sentencing guidelines case, appellant contends that the trial court erred in sentencing him under the guidelines, Florida Rule of Criminal Procedure 3.701. We agree.
The underlying offense in this case, possession of a firearm by a felon, was committed on July 10, 1983. Section 921.-001(4)(a), Florida Statutes (1983), provides that 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. In re Rules of Criminal Procedure, 439 So. 2d 848 (Fla.1983); Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984).
Here the record leaves no doubt that the trial judge intended to, and in fact did, utilize the guidelines in imposing a sentence. However, the record fails to demonstrate that appellant affirmatively selected sentencing under the guidelines or that he objected to imposition of a sentence under these guidelines. Under such circumstances, we have repeatedly held that mere silence by the defendant at sentencing cannot meet the requirement of an affirmative selection as “there must be a clear and unequivocal choice made on the record.” Jordan at 478. See Hart v. State, 464 So. 2d 592 (Fla. 2d DCA 1985); Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984); Harrington v. State, 455 So. 2d 1317 (Fla. 2d DCA 1984). At the sentencing hearing defense counsel and the trial judge discussed the use of the guidelines, defendant’s recommended sentence, counsel’s failure to find anything in the record indicating reasons for departure, and whether a departure was warranted. We find that nothing in that discussion constituted an affirmative selection by the defendant to be sentenced under the rule. See Hart. Accordingly, we affirm appellant’s conviction but vacate his sentence and remand this case for resentencing. On resentencing, appellant may exercise his option and affirmatively select to be sentenced under the guidelines. If he chooses not to be sentenced under the guidelines, appellant must be sentenced according to the laws in effect prior to the adoption of the guidelines. See Jordan.
REVERSED AND REMANDED WITH INSTRUCTIONS.
GRIMES, A.C.J., and SCHOONOVER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Wright v. State, 478 So. 2d 524 (Fla. 2d DCA 1985)…ing meets the requirement of an affirmative selection as “there must be a clear and unequivocal choice made on the record.” Jordan v. State, 460 So. 2d 477, 478 (Fla. 2d DCA 1984); Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985); Kimsey v. State, 467 So. 2d 333 (Fla. 2d DCA 1985); Smitti v. State, 465 So. 2d 1372 (Fla. 2d DCA 1985). Additionally, the mere fact that a seoresheet was prepared does not establish an affirmative selection. Finklea v. State, 470 So. 2d 90 (Fla. 1st DCA 1985). On this record it…
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McCLATCHIE v. State, 482 So. 2d 550 (Fla. 4th DCA 1986)…s severity as applied to appellant. The court held that defense counsel’s discussion did not constitute a clear and unequivocal choice made by the appellant on the record, citing Jordan v. State, 460 So. 2d 477 (Fla.2d DCA 1984). In Kimsey v. State, 467 So. 2d 333 (Fla.2d DCA 1985), the court held that the silence of the appellant and discussion of the guidelines by defense counsel did not constitute a clear and unequivocal choice. In Favors v. State, 473 So. 2d 815 (Fla.2d DCA 1985), the court stated there m…
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Mullens v. State, 483 So. 2d 92 (Fla. 2d DCA 1986)…are subject to the sentencing guidelines only if the defendant affirmatively selects to be sentenced under them. In re Rules of Criminal Procedure, 439 So. 2d 848 (Fla.1983). Mere silence does not consititute affirmative selection. Kimsey v. State, 467 So. 2d 333 (Fla. 2d DCA 1985). Nor does a discussion of the presumptive sentence with the trial court constitute affirmative selection. Jackson v. State, 478 So. 2d 515 (Fla. 2d DCA 1985). Accordingly, we reverse appellant’s sentences for the 1982 offenses an…
Previewing 3 of 8 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)
- Hardinghaus v. Enslen, 464 So. 2d 592 (Fla. 3d DCA 1985)
- State v. Herlovich, 455 So. 2d 1317 (Fla. 2d DCA 1984)
- Harrington v. State, 455 So. 2d 1317 (Fla. 2d DCA 1984)