SCOTT ALAN BENEDICT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Benedict appeals his sentencing for leaving the scene of an accident with injuries, challenging the trial court's assessment of victim injury points under Florida's sentencing guidelines. The Fifth District Court of Appeal reverses, holding that victim injury is not an element of the offense and therefore points should not have been scored.
Victim injury points should not have been scored because victim injury is not an element of the leaving-the-scene offense under sections 316.027 and 316.062. Points for victim injuries under Rule 3.701(d)(7) apply only when the defendant is convicted of an offense that includes physical impact or contact as an element.
[1] Victim injury shall be scored if it is an element of any offenses at conviction, as defined by Florida Rule of Criminal Procedure 3.701(d)(7).
[2] Victim injury is to be scored only when the defendant is convicted of an offense that includes physical impact or contact.
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Join FLexlaw to unlock all legal intelligence“This provision implements the intention of the commission that points for victim injuries be added only when the defendant is convicted of an offense (scored as either primary or additional offense) which includes physical impact or contact.”
Establishes the legal standard for when victim injury points may be assessed under the sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceBenedict was convicted of violating sections 316.027 and 316.062, Florida Statutes, which criminalize leaving the scene of an accident resulting in in…
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UPCHURCH, Judge.
Benedict appeals from a guidelines sentence for the offense of leaving the scene of an accident with injuries, contending that the trial court erred in assessing points for victim injury.
Florida Rule of Criminal Procedure 3.701(d)(7) provides that victim injury shall be scored if it is an element of any offenses at conviction. The committee note explains that:
This provision implements the intention of the commission that points for victim injuries 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, Benedict was convicted of violating sections 316.027 and 316.062, Florida Statutes, which require the driver of any vehicle involved in an accident resulting in injury or death to stop and render aid and to furnish certain information upon request. In Motyka v. State, 457 So. 2d 1114 (Fla. 1st DCA 1984), a case virtually identical to the present case, the court concluded that victim injury is not an element of leaving the scene of an accident (section 316.027) in the sense that one must injure or kill someone to be guilty of the offense.1 Likewise, we conclude that victim injury is not an element of section 316.062. Accordingly, points for victim injury should not have been scored. See Motyka. See also Hendry v. State, 460 So. 2d 589 (Fla. 2d DCA 1984) (victim injury points should not have been included in scoresheet since victim injury is not an element of the offenses of robbery, armed robbery or grand theft for which defendant was convicted.) Since points were erroneously scored for victim injury, we reverse and remand for resentencing,
REVERSED and REMANDED.
COBB, C.J., concurs.
COWART, J., concurs specially with opinion.
. For example, the driver who caused the accident could be the injured person and if the non-negligent driver left the scene, he could be charged.
COWART, Judge,
concurring specially:
This special concurrence is to note, as did the court in Hendry v. State, 460 So. 2d 589 (Fla. 2d DCA 1984), that because some aggravating sentencing factor is not, or cannot be, considered in a guidelines score-sheet calculation constitutes the very reason that factor may be properly considered by the trial court as a possible “clear and convincing” reason for departure from the recommended guideline sentence. See Albritton v. State, 458 So. 2d 320 (Fla. 5th DCA 1984), quashed on other grounds, 476 So. 2d 158 (Fla.1985); Burke v. State, 456 So. 2d 1245 (Fla. 5th DCA 1984); Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984); Weems v. State, 451 So. 2d 1027 (Fla. 2d DCA 1984), approved, 469 So. 2d 128 (Fla.1985).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Martinez v. State, 692 So. 2d 199 (Fla. 3d DCA 1997)…t for victim injury; the primary offense had already been enhanced because injury or death is an element of the offense. Byrd v. State, 531 So. 2d 1004 (Fla. 5th DCA 1988); see Hendsbee v. State, 497 So. 2d 718 (Fla. 2d DCA 1986); Benedict v. State, 475 So. 2d 1000 (Fla. 5th DCA 1985). 683 So. 2d at 516.2 To begin with, the Thornton decision analyzes the pre-1994 version of the guidelines. The question of how to score victim injury depends on the wording of the guidelines. However, the pre-1994 guidelines a…
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Elvin Vega v. State, 498 So. 2d 1294 (Fla. 5th DCA 1986)…bbery, since it is not an element of the crime charged. See Parker v. State, 478 So. 2d 823 (Fla. 2d DCA 1985); Smith v. State, 484 So. 2d 649 (Fla. 4th DCA 1986); Hendry v. State, 460 So. 2d 589 (Fla. 2d DCA 1984). This court, in Benedict v. State, 475 So. 2d 1000 (Fla. 5th DCA 1985), which dealt with victim injury for the offense of leaving the scene of an accident, seems to cite Hendry with approval. Since victim injuries cannot be considered in the scoring, the addition of seven points for this factor on V…
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Major Thornton v. State, 683 So. 2d 515 (Fla. 2d DCA 1996)…t for victim injury; the primary offense had already been enhanced because injury or death is an element of the offense. Byrd v. State, 531 So. 2d 1004 (Fla. 5th DCA 1988); See Hendsbee v. State, 497 So. 2d 718 (Fla. 2d DCA 1986); Benedict v. State, 475 So. 2d 1000 (Fla. 5th DCA 1985). However, the court found the error to be harmless. The trial court is mistaken. When Thornton’s score is reduced by forty-eight points, the corrected scoresheet places him in a different sentencing cell. This error cannot be pr…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Weems v. State, 469 So. 2d 128 (Fla. 1985)
- Green v. State, 455 So. 2d 586 (Fla. 2d DCA 1984)
- Sherman v. State, 451 So. 2d 1027 (Fla. 2d DCA 1984)
- Burke v. State, 456 So. 2d 1245 (Fla. 5th DCA 1984)
- Albritton v. State, 458 So. 2d 320 (Fla. 5th DCA 1984)
- Hendry v. State, 460 So. 2d 589 (Fla. 2d DCA 1984)
- Motyka v. State, 457 So. 2d 1114 (Fla. 1st DCA 1984)