HANS RICHARD KOLBE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant must affirmatively elect to be sentenced under the guidelines, and the absence of a guidelines scoresheet at sentencing constitutes reversible error.
Hans Richard Kolbe was sentenced under the guidelines for a felony offense committed before October 1, 1983. He appeals, arguing he did not affirmativ…
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HERSEY, Chief Judge.
As a result of a finding of violation of probation Hans Richard Kolbe was sentenced under the guidelines for a felony offense committed before October 1, 1983. He appeals on the basis that he did not affirmatively elect to be sentenced under the guidelines as required under such circumstances by section 921.001(4)(a), Florida Statutes (1983). It also appears that no guidelines scoresheet was available to the trial court at the time of sentencing, a violation of rule 3.701 d.l., Florida Rules of Criminal Procedure.
Review of the transcript reveals only one colloquy that could reasonably be interpreted as a reference to sentencing under the guidelines:
THE COURT: I believe he is coming under the first category?
MR. GAETA: That’s correct.
THE COURT: Bumped up one category he will receive a sentence of 30 months with the Department of Corrections in the State Prison.
This is inadequate to demonstrate an affirmative election of guidelines sentencing. See, e.g., Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984); Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984).
It was also reversible error not to have a guidelines scoresheet available at sentencing. Finklea v. State, 471 So. 2d 608 (Fla. 1st DCA 1985); Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984).
We therefore vacate the sentence and remand for resentencing.
REVERSED AND REMANDED.
HURLEY and DELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Huhn v. State, 511 So. 2d 583 (Fla. 4th DCA 1987)…ate’s motion to supplement. We must presume there was no scoresheet at sentencing, as the record contains no scoresheet. The cases say that failure to have a proper scoresheet is a sufficient basis for reversal of the sentence. E.g., Kolbe v. State, 480 So. 2d 694, 695 (Fla. 4th DCA 1985) (“It was also reversible error not to have a guidelines scoresheet available at sentencing. Finklea v. State, 471 So. 2d 608 (Fla. 1st DCA 1985); Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984).”) Because the judgment is…
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State v. Amico, 525 So. 2d 515 (Fla. 4th DCA 1988)…es.” Rule 3.701 d.l. provides: “One guideline score-sheet shall be utilized for each defendant covering all offenses pending before the court for sentencing.” A trial court must have a guidelines scoresheet available at sentencing. Kolbe v. State, 480 So. 2d 694 (Fla. 4th DCA 1985). See also Nelson v. State, 498 So. 2d 553 (Fla. 4th DCA 1986); Finklea v. State, 471 So. 2d 608 (Fla. 1st DCA 1985). The failure of the trial judge to have a new completed scoresheet before him at appellee’s probation revocatio…
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Valori v. State, 482 So. 2d 573 (Fla. 1st DCA 1986)…ear, is entitled to be sentenced under pre-guide-line law. See Duggar v. State, 446 So. 2d 222 (Fla. 1st DCA 1984). Since no affirmative election to be sentenced under the guidelines appears in the record, we remand for resentencing. Kolbe v. State, 480 So. 2d 694 (Fla. 4th DCA 1985); Brinson v. State, 483 So. 2d 13 (Fla. 1st DCA 1985). THOMPSON and BARFIELD, JJ„ concur.…
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
- Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984)
- Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984)
- Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984)
- Finklea v. State, 471 So. 2d 608 (Fla. 1st DCA 1985)