GENERAL GRANT SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's burglary conviction was improperly scored as first-degree felony when the information did not allege he was armed or committed assault/battery, requiring resentencing under proper second-degree felony guidelines.
A burglary must be scored as second-degree felony when the charging information does not allege the defendant was armed or committed assault or battery during the burglary.
[1] A burglary conviction must be scored under second-degree felony guidelines when the charging information fails to allege the defendant was armed or committed assault or b…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of battery and burglary with intent to commit an assault. The trial court scored the burglary as a first-degree felony at sixt…
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GRIMES, Acting Chief Judge.
Appellant was convicted of battery and burglary with intent to commit an assault. On the guidelines scoresheet, the burglary, which was the primary offense at conviction, was scored at sixty points. As computed, the recommended range under the guidelines was three and one half to four and one half years. The court sentenced appellant to concurrent terms of four and one half years for the burglary and one year for the battery.
On appeal appellant argues that the burglary was improperly scored as a first degree felony. Because the information did not allege appellant was armed or made an assault or battery during the course of the burglary, appellant could not have been convicted of a crime greater than a second degree felony. § 810.02(3), Fla.Stat. (1983); Speed v. State, 410 So. 2d 980 (Fla. 2d DCA 1982); see Cochenet v. State, 445 So. 2d 398 (Fla. 5th DCA), petition for review denied, 453 So. 2d 45 (Fla.1984). Accordingly, thirty points should have been scored for the primary offense at conviction, thereby placing appellant in the guidelines cell which recommended community control or twelve to thirty months incarceration. The absence of a contemporaneous objection does not preclude review of appellant’s sentences. Ramsey v. State, 462 So. 2d 875 (Fla. 2d DCA 1985).
We affirm appellant’s convictions; we reverse his sentences and remand for re-sentencing.
OTT and FRANK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Cochenet v. State, 445 So. 2d 398 (Fla. 5th DCA 1984)
- Speed v. State, 410 So. 2d 980 (Fla. 2d DCA 1982)
- Ramsey v. State, 462 So. 2d 875 (Fla. 2d DCA 1985)