WILBUR W. WRIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Wilbur Wright appealed his manslaughter conviction and seven-year sentence, challenging the trial court's application of sentencing guidelines. The court found that the trial judge improperly applied the guidelines without Wright's affirmative selection as required by statute for crimes committed before October 1, 1983.
The trial court erred in applying the sentencing guidelines because Wright did not make a clear and unequivocal affirmative selection to be sentenced under the guidelines. Neither the trial judge's intent to use the guidelines, the preparation of scoresheets, nor discussions at sentencing satisfy the statutory requirement for affirmative selection.
[1] Sentencing guidelines may be applied to crimes committed prior to October 1, 1983, only if the defendant affirmatively selects to be sentenced under the guidelines.
[2] Mere silence by a defendant at sentencing cannot satisfy the requirement of an affirmative selection for sentencing under the guidelines.
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Join FLexlaw to unlock all legal intelligence“there must be a clear and unequivocal choice made on the record”
Establishes the strict requirement for affirmative selection of sentencing guidelines; mere discussion or silence is insufficient
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Join FLexlaw to unlock all legal intelligenceWright was convicted of manslaughter for an offense committed on July 8, 1983. The trial court prepared sentencing guideline scoresheets, sent copies …
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DANAHY, Acting Chief Judge.
Appellant, Wilbur W. Wright, appeals from a judgment and sentence wherein the trial court adjudicated him guilty of manslaughter and sentenced him to a term of seven years in state prison. Appellant has raised two issues on appeal, but we find merit only in his contention that the trial court erred in sentencing him under the guidelines, Florida Rule of Criminal Procedure 3.701.
The offense in this case was committed on July 8, 1983. Section 921.001(4)(a), Florida Statutes (1983), provides that the sentencing guidelines may be applied to crimes when the offense occurred prior to October 1, 1983, only where the defendant affirmatively selects to be sentenced under the guidelines. In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So. 2d 848 (Fla.1983).
Here the record leaves no doubt that the trial judge intended to, and in fact did, utilize the guidelines in imposing a sentence. Scoresheets were prepared and copies were sent to the Department of Corrections. At the sentencing hearing, the parties discussed the use of the guidelines and appellant’s recommended sentence. Under such circumstances, we have repeatedly held that neither appellant’s silence nor such a discussion at sentencing meets the requirement of an affirmative selection as “there must be a clear and unequivocal choice made on the record.” Jordan v. State, 460 So. 2d 477, 478 (Fla. 2d DCA 1984); Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985); Kimsey v. State, 467 So. 2d 333 (Fla. 2d DCA 1985); Smitti v. State, 465 So. 2d 1372 (Fla. 2d DCA 1985). Additionally, the mere fact that a seoresheet was prepared does not establish an affirmative selection. Finklea v. State, 470 So. 2d 90 (Fla. 1st DCA 1985).
On this record it is not clear whether appellant would have received the same sentence had the trial court recognized that the guidelines were not to apply absent a clear and unequivocal selection by appel lant. Indeed, given the possibility of parole under traditional sentencing, the trial court could well have imposed a greater sentence. The statutory maximum for manslaughter is fifteen years in state prison. § 775.082(3)(c), Fla.Stat. (1983). Accordingly, we reverse appellant’s sentence and remand for resentencing. At resentencing, appellant may exercise his option and affirmatively select to be sentenced under the guidelines. If he chooses not to be sentenced under the guidelines, appellant must be sentenced according to the laws in effect prior to the adoption of the guidelines. Cahill; Kimsey. We affirm the judgment in all other respects.
FRANK and HALL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ryan v. State, 482 So. 2d 558 (Fla. 2d DCA 1986)…ant contends that because she did not select guidelines sentencing, her sentence should remain as imposed by the trial court except that she would be eligible for parole. We cannot agree with that contention. As this court stated in Wright v. State, 478 So. 2d 524 (Fla.2d DCA 1985), “On this record it is not clear whether appellant would have received the same sentence had the trial court recognized that the guidelines were not to apply absent a clear and unequivocal selection by appellant. Indeed, given the…
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Corrine Louise Trasti v. State, 487 So. 2d 428 (Fla. 5th DCA 1986)…r parole. The court noted that, given the possibility of parole under traditional sentencing, the trial court could well have imposed a greater sentence if it had not believed it was required to impose a guideline sentence. See also Wright v. State, 478 So. 2d 524 (Fla. 2d DCA 1985).…
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Santini v. State, 479 So. 2d 317 (Fla. 2d DCA 1985)…appellant affirmatively selected to be sentenced under the guidelines. Neither appellant’s silence nor discussion in his presence of a score-sheet prepared and presented pursuant to the rule can constitute an affirmative selection. Wright v. State, 478 So. 2d 524 (Fla. 2d DCA 1985); Parsons v. State, 470 So. 2d 834 (Fla. 2d DCA 1985). In the absence of such selection, the guidelines may not be applied. Wright. On this record, it is not clear whether appellant would have received the same sentences had the t…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Rules of Criminal Procedure (sentencing Guidelines), 439 So. 2d 848 (Fla. 1983)
- Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984)
- Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985)
- Finklea v. State, 470 So. 2d 90 (Fla. 1st DCA 1985)
- Kimsey v. State, 467 So. 2d 333 (Fla. 2d DCA 1985)
- Smith v. State, 465 So. 2d 1372 (Fla. 2d DCA 1985)