JOSEPH L. BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Brown appeals his convictions for armed robbery with a firearm and battery on a law enforcement officer. The Florida appellate court affirmed his convictions but vacated his armed robbery sentence, finding that the trial court erred by improperly including a victim injury computation in the sentencing guidelines calculation.
The court held that victim injury computations may only be included when the defendant is convicted of an offense that includes physical impact or contact as an element. Since the battery offense was properly classified as a prior record offense rather than a primary or additional offense, and since victim injury is not a necessary element of armed robbery, the victim injury computation was improper.
[1] Victim injury shall not be scored for sentencing guideline computations if not a factor of an offense at conviction.
[2] Victim injury points are to be added only when the defendant is convicted of an offense which includes physical impact or contact.
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Join FLexlaw to unlock all legal intelligence“Victim injury shall not be scored if not a factor of an offense at conviction.”
The governing sentencing rule that prevents victim injury computations unless injury is a necessary element of the offense of conviction.
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Join FLexlaw to unlock all legal intelligenceBrown was convicted of armed robbery with a firearm and battery on a law enforcement officer. At sentencing, the trial court used Florida's sentencing…
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WENTWORTH, Judge.
Appellant seeks review of judgments of conviction and sentences imposed for the offenses of armed robbery with a firearm and battery on a law enforcement officer. We find that in determining appellant’s recommended armed robbery sentence pursuant to the Fla.R.Crim.P. 3.701 sentencing guidelines the court erred by including a computation for the circumstance of victim injury. We therefore vacate appellant’s armed robbery sentence and remand the cause for resentencing.
Fla.R.Crim.P. 3.701(d)(7), as effective at the time of appellant’s armed robbery offense, provided that:
Victim injury shall not be scored if not a factor of an offense at conviction.
The Committee Note following Rule 3.701(d)(7) further provided that:
This provision implements the intention of the commission that points for victim injury be added only when the defendant is convicted of an offense (scored as either primary or additional offense) which includes physical impact or contact. Victim injury is to be scored for each victim for whom the defendant is convicted of injuring and is limited to physical trauma.
In the present case appellant’s offense of battery on a law enforcement officer offense was properly considered within the “prior record” category pursuant to Rule 3.701(d)(5), rather than as either a “primary or additional offense” at conviction. This battery offense therefore may not serve as the basis for a victim injury computation. And since victim injury is limited to physical trauma1 and is not a necessary element of appellant’s armed robbery offense it is not subject to inclusion in the sentencing guidelines computations for that offense. Hendry v. State, 460 So. 2d 589 (Fla. 2d DCA 1984); cf., Whitfield v. State, 471 So. 2d 633 (Fla. 1st DCA 1985). The issue is cognizable on appeal even though no objection was interposed below. Whitfield, supra.
Appellant’s argument with regard to other asserted errors is without merit. To the extent that the evidentiary predicate for various guideline computations is now challenged, the failure to object below does preclude appellate review of these issues. See Dailey v. State, 10 FLW 1120 (Fla. 1st DCA May 1, 1985), rehearing denied 471 So. 2d 1349 (June 27, 1985).
The judgments of conviction appealed are hereby affirmed, but appellant’s sentence for the offense of armed robbery with a firearm is vacated and the cause remanded for resentencing.
ERVIN and BARFIELD, JJ., concur. . Although victim injury as a guideline computation is limited to physical trauma, Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984), indicates that emotional injury or psychological trauma may also be considered as a basis for departing from a recommended guidelines sentence. Accord, Hendry v. State, 460 So. 2d 589 (Fla. 2d DCA 1984).
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Bernie I. Parker v. State, 478 So. 2d 823 (Fla. 2d DCA 1985)…force or violence, but neither is necessarily a part of the proof of force or violence. Consequently, we adhere to our prior holding that victim injury points should not be scored under the guidelines for the crime of robbery. Accord Brown v. State, 474 So. 2d 346 (Fla. 1st DCA 1985). When victim injury is not an element of a crime at conviction, it may be used as a reason to depart from the guidelines. See Hendrix v. State, 474 So. 2d 346 (Fla.1985). Hence, victim injury may be used as a reason to depart fro…1 / 2
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Harrison v. State, 523 So. 2d 726 (Fla. 3d DCA 1988)…ed in the burglary offense — has already been the subject of Harrison’s conviction and imprisonment for second degree murder, a crime for which points are to be scored in the prior conviction category. See Peterson, 506 So. 2d at 96; Brown v. State, 474 So. 2d 346 (Fla. 1st DCA 1985). Double or triple dipping of this kind is not permitted under the guidelines scheme. See Hendrix v. State, 475 So. 2d 1218 (Fla.1985). The state finally argues that we should permit the trial court, if it deems appropriate after…
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Smith v. State, 484 So. 2d 649 (Fla. 4th DCA 1986)…s should not have been included in the scoresheet, because victim injury is not an element of the convicted offenses of robbery, armed robbery, or grand theft. Id. at 589; see also Parker v. State, 478 So. 2d 823 (Fla. 2d DCA 1985); Brown v. State, 474 So. 2d 346 (Fla. 1st DCA 1985). Appellant next argues that the trial court erroneously added forty-one points for his prior record when he should have only added twenty-three points. Appellant and the State stipulated to two prior third degree felony convicti…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984)
- Dailey v. State, 471 So. 2d 1349 (Fla. 1st DCA 1985)
- Hendry v. State, 460 So. 2d 589 (Fla. 2d DCA 1984)
- Whitfield v. State, 471 So. 2d 633 (Fla. 1st DCA 1985)