DARRELL BLACKWELDER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Darrell Blackwelder appeals his convictions and sentences for nine crimes, including six pre-guideline offenses and three new crimes (robbery, attempted first-degree murder, and kidnapping). The court affirms the convictions but remands to correct sentencing errors related to guideline applicability, improper enhancement of attempted first-degree murder, and unlawful retention of jurisdiction provisions.
The convictions are affirmed, but sentencing is remanded for correction. The court must remove the guideline applicability from the six pre-guideline offenses and correct the attempted first-degree murder sentence to comply with the 30-year statutory maximum for first-degree felonies. The retention of jurisdiction provisions over the three guideline-sentenced crimes must be stricken because guidelines sentences prohibit such retention.
[1] Sentencing under guidelines requires an affirmative selection by the defendant on the record.
[2] A crime cannot be enhanced to a life felony based on weapon use if the charging instrument lacks the requisite allegation of weapon use.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“By itself, defense counsel's discussion of the scoresheet with the trial court does not constitute a clear and unequivocal choice made by the appellant on the record.”
Establishes the standard requiring explicit affirmative selection to apply guidelines to pre-guideline offenses.
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Join FLexlaw to unlock all legal intelligenceAppellant was placed on probation in 1980-1982 for six offenses: second-degree grand theft and five counts of obtaining property by worthless check. I…
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GRIMES, Acting Chief Judge.
Appellant was placed on probation for six offenses, second degree grand theft and five counts of obtaining property by worthless check, which he committed in 1980 and 1982. Thereafter, he was charged with robbery, attempted first degree murder, and kidnapping, all of which occurred in early 1984. After his probation was revoked and he was convicted of the new charges, appellant was sentenced to a total of 327 years for all nine crimes.
On appeal, appellant first contends that the trial court erred in sentencing him pursuant to the guidelines for the six offenses for which his probation was revoked. He argues that the affirmative selection to be sentenced under the guide lines which was required because the underlying offenses were committed prior to October 1, 1983, was lacking.
The record contains no affirmative selection although defense counsel did apprise the court of the recommended guidelines range and objected to its severity as applied to appellant. By itself, defense counsel’s discussion of the scoresheet with the trial court does not constitute a clear and unequivocal choice made by the appellant on the record. Favors v. State, 473 So. 2d 815 (Fla. 2d DCA 1985); Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984). Because it is apparent that the court intended to impose the maximum penalties provided by law for the six crimes and they were not offenses over which the court could retain jurisdiction, there is no need for resentencing. Tillman v. State, 466 So. 2d 20 (Fla. 2d DCA 1985).
However, the record must be corrected to reflect that appellant was not sentenced under the guidelines for these crimes.
Appellant also argues that because the statutory maximum for a first degree felony is thirty years, the trial court erred in sentencing him to ninety-nine years for the first degree felony of attempted first degree murder.
We agree. The state’s contention that the crime was enhanced to a life felony under section 775.087, Florida Statutes (1983), because of appellant’s use of a weapon cannot prevail. The count charging appellant with attempted first degree murder lacked the requisite allegation of the use of a weapon or firearm. See Peck v. State, 425 So. 2d 664 (Fla. 2d DCA 1983); cf. Williams v. State, 407 So. 2d 223 (Fla. 2d DCA 1981) (crime properly enhanced by nolo contendere plea to information charging commission of crime while in possession of a firearm).
The allegation contained in the robbery count that appellant used a weapon cannot be used to supplement the count for attempted first degree murder. Cochenet v. State, 445 So. 2d 398 (Fla. 5th DCA), petition for review denied, 453 So. 2d 45 (Fla.1984).
Appellant points out that the trial court erred in retaining jurisdiction over one third of his sentences for robbery, attempted first degree murder, and kidnapping. Because appellant was sentenced under the guidelines for these offenses, the retention of jurisdiction provisions of these sentences must be stricken. Barr v. State, 473 So. 2d 25 (Fla. 2d DCA 1985).
Finally, appellant argues that the trial court’s extent of departure was not commensurate with the severity of the offenses. The maximum statutory sentence is not the only lawful limitation on departure. Albritton v. State, 476 So. 2d 158 (Fla.1985). The presumptive range for the three crimes for which appellant was sentenced under the guidelines was twenty-seven to forty years. As corrected by this opinion, appellant received a total of 228 years imprisonment for these crimes. In view of the circumstances surrounding the commission of these crimes, we cannot say that the trial court abused its discretion in imposing the practical equivalent of a life sentence.
We affirm the convictions but remand with directions to correct the sentences for the six pre-guidelines offenses and the attempted first degree murder, and to strike the retention of jurisdiction over the sentences for robbery, attempted first degree murder, and kidnapping.
OTT and FRANK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
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State v. Webster Fleming McKINNON, 540 So. 2d 111 (Fla. 1989)…or display of a firearm from the conviction on the second count of the indictment. This inference is not proper. Conviction on one count in an information may not be used to enhance punishment for a conviction on another count. Blackwelder v. State, 476 So. 2d 280, 281 (Fla. 2d DCA 1985); see also Co-chenet v. State, 445 So. 2d 398 (Fla. 5th DCA), review denied, 453 So. 2d 45 (Fla.1984). Therefore the reclassification of the manslaughter conviction as a first-degree felony cannot stand. Because the manslaugh…
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Jackson v. State, 478 So. 2d 515 (Fla. 2d DCA 1985)…trued as an affirmative selection. Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984). Neither can the defense counsel’s discussion of the presumptive sentence with the trial court be considered an affirmative selection. See Blackwelder v. State, 476 So. 2d 280 (Fla. 2d DCA 1985). In sum, with respect to the 1981 and 1982 crimes the lower court erred by considering and departing from the sentencing guidelines without Jackson’s affirmative selection. Jackson’s failure to object to the sentences did not wa…
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COX v. State, 530 So. 2d 464 (Fla. 5th DCA 1988)…ious than the statute under which the crime is charged is fundamental error. Cochenet v. State, 445 So. 2d 398 (Fla. 5th DCA 1984). The sentence is reversed and this cause remanded for resentencing. 448 So. 2d at 541. See also Blackwelder v. State, 476 So. 2d 280 (Fla. 2d DCA 1985); Smith v. State, 475 So. 2d 1336 (Fla. 2d DCA 1985). In the present case, Cox was charged with battery on a law enforcement officer pursuant to section 784.03, Florida Statutes (1987) and section 784.07, Florida Statutes (1987),…
Previewing 3 of 18 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)
- Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984)
- Cochenet v. State, 445 So. 2d 398 (Fla. 5th DCA 1984)
- Peck v. State, 425 So. 2d 664 (Fla. 2d DCA 1983)
- Williams v. State, 407 So. 2d 223 (Fla. 2d DCA 1981)
- Arba Earl Barr v. State, 473 So. 2d 25 (Fla. 2d DCA 1985)
- Lowery v. State, 473 So. 2d 815 (Fla. 2d DCA 1985)
- Gibson Hauling, Inc. v. Armbrister, 466 So. 2d 20 (Fla. 2d DCA 1985)
- Tillman v. State, 466 So. 2d 20 (Fla. 2d DCA 1985)