ORVILLE PATRICK KERR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Orville Patrick Kerr appealed his conviction and sentences for second-degree murder and possession of a short-barreled shotgun, challenging the scoresheet version used in sentencing and the trial court's retention of jurisdiction. The appellate court affirmed the sentences but struck the retention of jurisdiction provision.
The court held that the trial court did not err in using the revised scoresheet because modifications to sentencing guidelines procedures are merely procedural changes not subject to ex post facto doctrine. The court also held that trial courts may not retain jurisdiction over sentences when sentencing guidelines apply because parole is no longer available, and therefore struck the retention of jurisdiction provision.
[1] A trial court may not retain jurisdiction over a defendant's sentence when sentencing guidelines apply, as parole is no longer available in such cases.
[2] A modification in sentencing guidelines procedure is a procedural change that does not implicate the ex post facto doctrine, allowing for the use of revised guidelines in…
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Join FLexlaw to unlock all legal intelligence“a modification in the sentencing guidelines procedure is merely a procedural change which does not require application of the ex post facto doctrine”
Establishes that using the revised scoresheet was proper because guideline modifications are procedural, not substantive
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Join FLexlaw to unlock all legal intelligenceOn March 31, 1984, Orville Patrick Kerr committed second-degree murder and possessed a short-barreled shotgun. On August 30, 1984, a jury found him gu…
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SCHEB, Acting Chief Judge.
On August 30, 1984, a jury found the defendant Orville Patrick Kerr guilty of second degree murder and possession of a short-barreled shotgun, violations of sections 782.04(2) and 790.221, Florida Statutes (1983). The offenses occurred on March 31, 1984. After hearing argument from counsel, the trial judge decided to depart from the sentencing guidelines and filed a written order setting forth his reasons for exceeding the guidelines. The defendant was sentenced to consecutive terms of ninety-nine years on the second degree murder count and five years on the possession charge. The court retained jurisdiction over one-third of defendant’s sentence. The defendant appeals his sentences on two grounds.
First, defendant argues that the court incorrectly used a guidelines score-sheet based on the revised version of the category I scoresheet, which became effective on July 1, 1984. The Florida Bar: Amendment of Buies of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So. 2d 824 (Fla.1984). It reflected a range of seventeen to twenty-two years imprisonment. As defendant notes, Florida courts have previously held that the proper scoresheet is the version in effect at the time the crimes were committed. Jones v. State, No. BD-92 (Fla. 1st DCA Oct. 10, 1985) [10 F.L.W. 2330]; Lewis v. State, 475 So. 2d 1367 (Fla. 2d DCA 1985) [10 F.L.W. 2293]; Beggs v. State, 473 So. 2d 9 (Fla. 1st DCA 1985). In this case, that scoresheet, if used, would have recommended twelve to seventeen years incarceration.
Since the filing of this appeal, however, our supreme court issued its opinion in State v. Jackson, 478 So. 2d 1054 (Fla.1985), in which the court stated that a modification in the sentencing guidelines procedure is merely a procedural change which does not require application of the ex post facto doctrine. Therefore, on the authority of Jackson, we hold that it was not error for the trial court to use the revised version of the category I scoresheet in effect at the time of sentencing. See also Davis v. State, 480 So. 2d 672 (Fla. 2d DCA 1985).
Second, defendant contends that the trial court erred in retaining jurisdiction over his sentence. A trial court may not retain jurisdiction over a defendant where sentencing guidelines apply, since parole is no longer available in such cases pursuant to section 921.001(8), Florida Statutes (1983). Ragan v. State, 468 So. 2d 322 (Fla. 2d DCA 1985).
Accordingly, we strike the retention of jurisdiction provision of defendant’s sentences. See Blackwelder v. State, 476 So. 2d 280 (Fla. 2d DCA 1985); Barr v. State, 473 So. 2d 25 (Fla. 2d DCA 1985). Otherwise, we affirm the judgments and sentences.
DANAHY and CAMPBELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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van Horn v. State, 485 So. 2d 1380 (Fla. 3d DCA 1986)…decisions that Jackson cannot be fairly restricted to its own situation and must be read to permit, indeed require, retroactive application of guideline amendments in all cases. See Jones v. State, 482 So. 2d 586 (Fla. 1st DCA 1986); Kerr v. State, 481 So. 2d 1233 (Fla. 2d DCA 1985); Inscore v. State, 480 So. 2d 218 (Fla. 4th DCA 1985); Carter v. State, 483 So. 2d 740 (Fla. 5th DCA 1986). . In my view, this is not the case because, as Hoffman v. Jones, 280 So. 2d 431 (Fla.1973) says, district courts lack the…
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Williams v. State, 493 So. 2d 48 (Fla. 2d DCA 1986)…dant’s juvenile convictions. Finally, we agree with defendant that the trial court erred in retaining jurisdiction over ten years of the burglary sentence. The court had no authority to retain jurisdiction over a guidelines sentence. Kerr v. State, 481 So. 2d 1233 (Fla. 2d DCA 1985). Accordingly, we affirm the defendant’s convictions but vacate his sentences. We remand for resentencing consistent with this opinion. If the trial court again chooses to depart from the recommended sentence under the guidelines,…
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Copeland v. State, 503 So. 2d 1301 (Fla. 2d DCA 1987)…that appellant be resentenced within the guidelines presumptive range. Concluding its order, the trial court announced retention of jurisdiction over one-third of appellant’s sentences. We have repeatedly held that this is improper. Kerr v. State, 481 So. 2d 1233 (Fla. 2d DCA 1985). See, e.g., Ragan v. State, 468 So. 2d 322 (Fla. 2d DCA 1985). Accordingly, we reverse appellant’s sentences and remand for resentencing within [*1304] the guidelines. On remand, the trial court is further directed to prepare a c…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- THE Fla. BAR: Amendment to Rules of Crim. Procedure (3.701, 451 So. 2d 824 (Fla. 1984)
- Blackwelder v. State, 476 So. 2d 280 (Fla. 2d DCA 1985)
- Arba Earl Barr v. State, 473 So. 2d 25 (Fla. 2d DCA 1985)
- Beggs v. State, 473 So. 2d 9 (Fla. 1st DCA 1985)
- Willie v. State, 468 So. 2d 322 (Fla. 4th DCA 1985)
- Ragan v. State, 468 So. 2d 322 (Fla. 2d DCA 1985)
- Lewis v. State, 475 So. 2d 1367 (Fla. 2d DCA 1985)
- Davis v. State, 480 So. 2d 672 (Fla. 2d DCA 1985)
- Weber v. NEW Hampshire Ins. Co., 480 So. 2d 672 (Fla. 2d DCA 1985)