JAMES EDWARD DAWSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Edward Dawson appealed his convictions on multiple counts. The court affirmed all convictions but vacated the sentences and remanded for resentencing due to multiple sentencing errors, including improper reclassification of felonies, failure to use sentencing guidelines, improper retention of jurisdiction over part of the sentence, and improper cost assessment against an indigent defendant.
The court affirmed all convictions, finding no reversible error. However, the court held that the trial court erred in reclassifying the felonies without jury findings of the reclassifying factual elements for each count, erred in failing to sentence under the guidelines with an approved scoresheet, erred in retaining jurisdiction over part of a guidelines sentence, and erred in assessing costs against an indigent defendant without complying with applicable requirements.
[1] A trial court cannot reclassify a felony based on the use of a weapon or aggravated battery unless the trier of fact has made a specific finding of those elements, absent…
[2] A defendant convicted of attempted sexual battery or false imprisonment is not automatically subject to felony reclassification for weapon use or aggravated battery, as t…
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“the factual element subjecting the defendant to reclassification under section 775.-087(1) must be found by the trier of fact, precluding judicial reclassification in a jury trial”
Establishes that in jury trials, the jury must find factual elements necessary for felony reclassification; judges cannot make such determinations unilaterally.
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Join FLexlaw to unlock all legal intelligenceDawson was convicted of attempted sexual battery, false imprisonment, and aggravated battery. The trial court expressed intent to sentence him as a ha…
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HERSEY, Chief Judge.
We affirm the convictions of James Edward Dawson on all counts, finding that his points on appeal either demonstrate no error or, in one instance, that the error is harmless. However, we vacate the sentences and remand for resentencing because of various errors apparent in the original sentencing process. Those errors are briefly chronicled here to avoid their repetition upon remand.
While the trial court expressed the intention to sentence appellant as an habitual offender, it is clear that he did not do so. Had he carried out that intent it would have been error for failure to make findings on the record in compliance with section 775.084(1)(a)3 and 4, Florida Statutes (1983).
The trial court, as we gather from examination of the record, reclassified an attempted sexual battery as a first-degree felony and a false imprisonment as a second-degree felony. This, too, was error. Pursuant to section 775.087(1), Florida Statutes (1983), there were two possible bases for reclassification: use of a weapon (mace) and commission of an aggravated battery. However, as appellant points out, “the factual element subjecting the defendant to reclassification under section 775.-087(1) must be found by the trier of fact, precluding judicial reclassification in a jury trial.” State v. Smith, 462 So. 2d 1102, 1103 (Fla.1985). See also State v. Overfelt, 457 So. 2d 1385 (Fla.1984); Streeter v. State, 416 So. 2d 1203 (Fla. 3d DCA 1982). There was no specific finding by the jury that, in connection with the commission of attempted sexual battery and false imprisonment, appellant used a weapon or committed an aggravated battery. Although appellant was found guilty of aggravated battery in a separate count, this is not sufficient, because each count must be considered alone. Streeter. There is an exception to the above rule where the crime of which the defendant was convicted necessarily includes the factual elements subjecting him to reclassification, see Overfelt, but such is not the case before us. It is not necessary to show the presence of all of the elements of an aggravated battery or use of a weapon in order to convict of either attempted sexual battery or false imprisonment. See §§ 777.04, 784.045, 787.02, 794.011(3), Fla. Stat. (1983).
Appellant also properly asserts that because the crimes were committed after the effective date of the sentencing guidelines he was entitled to be sentenced under the guidelines with the benefit of a court-approved guidelines scoresheet. § 921.001(4)(a), Fla.Stat. (1983); Fla.R. Crim.P. 3.701 d. 1.; Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984); Knight v. State, 455 So. 2d 457 (Fla. 1st DCA 1984). Nor does appellant’s failure to object below to being sentenced without the use of a scoresheet prevent consideration of the issue on appeal. State v. Rhoden, 448 So. 2d 1013 (Fla.1984); Myrick.
The trial court further erred in retention of jurisdiction over one-third of appellant’s sentence. Retention of jurisdiction over any portion of a sentence imposed under the guidelines — as this sentence should have been — is improper. Clement v. State, 468 So. 2d 467 (Fla. 4th DCA 1985).
Finally, the trial judge improperly assessed costs against appellant, who had been declared indigent, without compliance with the requirements set forth in Jenkins v. State, 444 So. 2d 947 (Fla.1984). We affirm the convictions but vacate the sentences and remand for resentencing.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
LETTS and DELL, JJ., concur.
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Citator
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Hansbrough v. State, 509 So. 2d 1081 (Fla. 1987)…ty-five years for armed robbery. § 812.13(2)(a), Fla.Stat. (1985). Because the sentencing guidelines apply to that sentence, however, the trial court should not have retained jurisdiction for one-third of the armed robbery sentence. Dawson v. State, 491 So. 2d 310 (Fla. 4th DCA 1986); Kennedy v. State, 490 So. 2d 195 (Fla. 2d DCA 1986); Wright v. State, 487 So. 2d 1176 (Fla. 1st DCA 1986). Hansbrough’s argument that points should not have been scored for victim injury because victim injury is not an element…
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Dawson v. State, 532 So. 2d 89 (Fla. 4th DCA 1988)…[*90] GUNTHER, Judge. Defendant appeals his resentencing conducted on remand pursuant to this court’s opinion in Dawson v. State, 491 So. 2d 310 (Fla. 4th DCA 1986). At resentencing, an incorrectly calculated scoresheet led the trial judge to mistakenly believe that the defendant’s guideline sentence range was life in prison. However, the correct guideline sentence range was actually 27-40 y…
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Whistin v. State, 500 So. 2d 730 (Fla. 2d DCA 1987)…s of that presumptive range is not contested. We, therefore, find this argument unpersuasive. Appellant next argues that since he was not eligible for parole, the court improperly retained jurisdiction over a third of his sentence. Dawson v. State, 491 So. 2d 310 (Fla. 4th DCA 1986). We agree and remand for removal of the court’s retention of jurisdiction. Turning to appellant’s third argument, we remand here also, this time to allow the court to correct its judgment to reflect that appellant was convicted…
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
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- State v. Learnhart Rhoden, 448 So. 2d 1013 (Fla. 1984)
- State v. Overfelt, 457 So. 2d 1385 (Fla. 1984)
- Murrell Streeter v. State, 416 So. 2d 1203 (Fla. 3d DCA 1982)
- Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984)
- Knight v. State, 455 So. 2d 457 (Fla. 1st DCA 1984)
- State v. Smith, 462 So. 2d 1102 (Fla. 1985)
- Barnett Bank OF ST. Lucie Cnty. v. Garrett, 468 So. 2d 467 (Fla. 4th DCA 1985)