JAMES ERNEST MILLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We vacate the sentence because the trial court erroneously applied a stiffening of the sentencing guidelines pertaining to sexual offenders, contained in the Florida Rules of Criminal Procedure, that did not become effective until after the appellant committed the instant offense. A rule change that has a disadvantageous effect on an offender does not apply to crimes committed before the effective date of the rule change. See Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); State v. Williams, 397 So. 2d 663, 665 (Fla.1981); Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984); Arnold, v. State, 429 So. 2d 819 (Fla. 2d DCA 1983).
We remand for resentencing in accordance with the sentencing guidelines in effect at the time the offense was committed. We observe that the same sentence is possible if clear and convincing reasons for departure from the then applicable guidelines are stated in writing.
HERSEY, GLICKSTEIN and BARRETT, JJ., concur.
PER CURIAM.
We deny appellee’s motion for rehearing. In doing so, we would like to comment on two cases dealing with the amendments to the sentencing guidelines. Hopper v. State, 465 So. 2d 1269 (Fla. 3d DCA 1985), and Frazier v. State, 463 So. 2d 458 (Fla. 2d DCA 1985), involved situations where the trial court applied the amendments to the sentencing guidelines at a hearing that took place before the effective date of the amendment. In reversing, the appellate court stated that the amended guidelines were not to be applied retroactively and remanded the case for resentencing in accordance with the guidelines in effect at the time of defendant’s original sentencing.
These cases do not involve retroactive application. They involve application of the amendments to the guidelines before their effective date. Further, the court’s language' remanding for resentencing in accordance with the guidelines in effect at the time of the original sentencing is not inconsistent with our holding here, as the court was referring to the original guidelines which correlate their effective date to the date of a defendant’s offense.
HERSEY, GLICKSTEIN and BARRETT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (22 total)
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Moore v. State, 469 So. 2d 947 (Fla. 5th DCA 1985)…his disadvantage in relation to the date he committed the offense, their application in this case violates the ex post facto clause. U.S. CONST., art. I, § 10; Art. I, § 10, Fla. Const.; Wilensky v. Fields, 267 So. 2d 1 (Fla.1972); Miller v. State, 468 So. 2d 1018 (Fla. 4th DCA 1985); Brown v. State, 460 So. 2d 427 (Fla. 5th DCA 1984); Carter v. State, 452 So. 2d 953, n. 3 at 954 (Fla. 5th DCA 1984). Even though we affirm the balance of this appeal, the sentence received exceeds the presumptive range for a “n…
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Massard v. State, 501 So. 2d 1289 (Fla. 4th DCA 1986)…ining to the original sentencing. Appellant contends that where the sentencing guidelines have been amended, the version in effect at the time of the commission of the offense applies. This contention is supported by our holding in Miller v. State, 468 So. 2d 1018 (Fla. 4th DCA 1985). The Miller holding, however, has been implicitly disapproved by the Supreme Court of Florida in State v. Jackson, 478 So. 2d 1054 (Fla.1985), where the court held that the version of the guidelines in effect at the time of sente…
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Olin J. Dewberry v. State, 472 So. 2d 792 (Fla. 1st DCA 1985)…in sentencing that defendant, if an amendment, occurring and effective after the commission, would attach legal consequences to his crimes which would affect him disadvantageously. State v. Williams, 397 So. 2d 663, 665 (Fla.1981). Miller v. State, 468 So. 2d 1018 (Fla.4th DCA 1985), similarly involved a change in the guidelines not effective until after the offense had been committed. The court, relying on Williams, held that “[a] rule change that has a disadvantageous effect on an offender does not apply t…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Weaver v. Graham, 450 U.S. 24 (U.S. 1981)
- Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984)
- State v. Williams, 397 So. 2d 663 (Fla. 1981)
- Arnold v. State, 429 So. 2d 819 (Fla. 2d DCA 1983)
- Freeman Frazier v. State, 463 So. 2d 458 (Fla. 2d DCA 1985)
- Hopper v. State, 465 So. 2d 1269 (Fla. 2d DCA 1985)