ALAN RANDOLPH INSCORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the victim injury points should not have been scored under the sentencing guidelines, and costs cannot be assessed without notice and an opportunity to be heard.
Alan Randolph Inscore was convicted of attempted aggravated battery and sentenced. The trial court ordered restitution and costs, applying a later ver…
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HERSEY, Chief Judge.
Alan Randolph Inscore was convicted of attempted aggravated battery with a deadly weapon and was sentenced to thirty months’ incarceration and thirty months’ probation. He was ordered to make restitution in the amount of $8,660.25 and although having been adjudicated indigent, was ordered without prior notice to pay costs to the Crimes Compensation Fund.
We affirm the conviction and the requirement for restitution; however, we vacate the sentence and the order to pay costs.
On appellant’s sentencing guidelines scoresheet, thirty-six points were added because the victim was injured. The provision of the guidelines pertaining to victim injury, rule 3.701(d)(7), Florida Rules of Criminal Procedure, was amended between the time of commission of the offense and the time of sentencing. Appellant contends that the version of the guidelines in effect at the time of commission of the offense applies rather than the later revision, relying on Miller v. State, 468 So. 2d 1018 (Fla. 4th DCA 1985). The holding in that case has been implicitly disapproved by the Supreme Court of Florida. See State v. Jackson, 478 So. 2d 1054 (Fla.1985). Regardless, victim injury should not have been scored here under either version of the guidelines, and we vacate the sentence and remand for resentencing with directions that victim injury not be scored. Motyka v. State, 457 So. 2d 1114 (Fla. 1st DCA 1984).
The assessment of costs is stricken without prejudice to the state to tax costs after notice to appellant and an opportunity to be heard. Jenkins v. State, 444 So. 2d 947 (Fla.1984).
AFFIRMED EXCEPT SENTENCE VACATED AND COSTS STRICKEN.
REMANDED WITH INSTRUCTIONS.
GLICKSTEIN and HURLEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Beasley v. State, 503 So. 2d 1347 (Fla. 5th DCA 1987)…arture from the recommended guideline sentence if properly stated in writing, (footnotes excluded) 482 So. 2d at 432. Likewise, the Fourth District has held that victim injury could not be scored for attempted aggravated battery. Inscore v. State, 480 So. 2d 218 (Fla. 4th DCA 1985). Other decisions have held that victim injury cannot be scored where it is not an element of the offenses charged. Vaillant v. State, 490 So. 2d 1326. (Fla. 3d DCA 1986); Lee v. State, 486 So. 2d 709 (Fla. 5th DCA 1986); Smith v.…
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Larsen v. State, 485 So. 2d 1372 (Fla. 1st DCA 1986)…whether the homicide amounted to murder in the second degree. On the third point, appellant’s contention that changes in the guidelines were improperly applied retroactively in sentencing appellant, we adhere to our decision in Wilkerson v. State, 480 So. 2d 218 (Fla. 1st DCA 1985), in which we held that the Supreme Court’s opinion in State v. Jackson, 478 So. 2d 1054 (Fla.1985), effectively disposed of the argument that the ex post facto doctrine forecloses application of a guidelines amendment which was n…
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Baker v. State, 526 So. 2d 202 (Fla. 4th DCA 1988)…1984), for the principle that points for victim injury cannot be properly awarded under the guidelines in the instant case when victim injury is not an element of the convicted offense. The present case, in our view, is similar to Inscore v. State, 480 So. 2d 218 (Fla. 4th DCA 1985), which held victim injury could not be scored for attempted aggravated battery. It was error to score victim injury for attempted sexual battery. As to the two questions with respect to the instructions, we find no error in inst…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Miller v. State, 468 So. 2d 1018 (Fla. 4th DCA 1985)
- Motyka v. State, 457 So. 2d 1114 (Fla. 1st DCA 1984)