ROBERT WILLIAM CAHILL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant must affirmatively select to be sentenced under the guidelines for offenses committed before October 1, 1983, and silence or discussion does not constitute such selection.
Appellant was found guilty of kidnapping for an offense committed in September 1983. At sentencing in June 1984, the trial court departed from the sen…
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SCHOONOVER, Judge.
The appellant, Robert William Cahill, appeals from the judgment and sentence entered against him pursuant to a jury verdict finding him guilty of kidnapping in violation of section 787.01 1(a)(3), Florida Statutes (1983). Appellant has raised two arguments on appeal, but we find merit only in his contention that the trial court erred in sentencing him under the sentencing guidelines, Florida Rules of Criminal Procedure 3.701.
The offense in this case was committed in September, 1983. At sentencing on June 29, 1984, the parties discussed the guidelines scoresheet. The court stated it was going to depart from the guidelines, set forth reasons for its departure, and then sentenced the appellant to life imprisonment. This appeal timely followed.
Where an offense occurs prior to October 1, 1983, the sentencing guidelines may only be applied if the defendant affirmatively selects to be sentenced under them. In Re Rules of Criminal Procedure, 439 So. 2d 848 (Fla.1983). Although the appellant in this case did not object to the imposition of a sentence under the guidelines, he did not affirmatively select to be sentenced under them. Neither appellant’s silence, nor the discussion of a scoresheet presented pursuant to the rule, can constitute a clear and unequivocal selection to be sentenced under the guidelines. Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984).
Since the record does not reflect a clear and unequivocal selection by the appellant, we reverse and remand for resentencing. At resentencing the appellant may affirmatively select to be sentenced under the guidelines. If he does not, the court must resentence him according to the law in ef- feet prior to the adoption of the guidelines. We affirm the judgment in all other respects.
Reversed and remanded for resentencing.
GRIMES, A.C.J., and DANAHY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Wright v. State, 478 So. 2d 524 (Fla. 2d DCA 1985)…appellant’s silence nor such a discussion at sentencing 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, 47…
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Bexley v. State, 490 So. 2d 226 (Fla. 2d DCA 1986)…did not affirmatively select to be sentenced under them. Neither his silence, nor the discussion of a scoresheet presented pursuant to the rule, can constitute a clear and unequivocal selection to be sentenced under the guidelines. Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985). Since the record does not reflect a clear and unequivocal selection by the appellant, we must reverse and remand for resentenc-ing. At resentencing, the appellant may affirmatively select to be sentenced under the guidelines. If…
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Parsons v. State, 470 So. 2d 834 (Fla. 2d DCA 1985)…elect to be sentenced under them. Neither appellant’s silence, nor the discussion in his presence of a scoresheet presented pursuant to the rule, can constitute a clear and unequivocal selection to be sentenced under the guidelines. Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985); Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984). Because appellant’s right to be paroled depends upon whether he was sentenced under the guidelines, we must remand for resentencing. At resentencing, the appellant may affirmat…
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- 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)