LUIS BECEIRO-MESA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defendant's sentence was vacated because the trial court applied sentencing guidelines to pre-October 1, 1983 crimes without the defendant's affirmative election to be sentenced under the guidelines.
Sentencing guidelines may be applied to pre-October 1, 1983 crimes only if the defendant makes an affirmative selection, and silence or an attorney's plea for probation does not constitute clear and unequivocal acquiescence.
[1] Sentencing guidelines applicable to crimes committed prior to October 1, 1983 require affirmative election by defendant; silence and counsel's plea for probation do not c…
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Join FLexlaw to unlock all legal intelligenceDefendant was convicted by jury of aggravated battery and carrying a concealed firearm, crimes committed prior to October 1, 1983. The trial court sen…
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PER CURIAM.
The defendant was convicted by a jury of aggravated battery and carrying a concealed firearm. Both of these crimes were committed prior to the adoption of the sentencing guidelines. The defendant contends that the trial court erred in sentencing him in accordance with the guidelines. We agree.
The sentencing guidelines may be applied to crimes committed prior to October 1, 1983, if a. defendant makes an affirmative selection to be sentenced pursuant to them. In re Rules of Criminal Procedure, 439 So. 2d 848 (Fla.1983); § 921.001(4)(a), Fla. Stat. (1983). In the present case, the defendant made no affirmative selection. Neither his silence nor his attorney’s plea to the trial court for probation evinced the defendant’s clear and unequivocal acquiescence to sentencing under the guidelines. See Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984); see also Ryan v. State, 482 So. 2d 558 (Fla. 2d DCA 1986); Kimsey v. State, 467 So. 2d 333 (Fla. 2d DCA 1985).
For these reasons, the defendant’s sentence is vacated with directions to resen-tence the defendant in accordance with applicable sentences, including eligibility for parole, unless the defendant affirmatively elects to be sentenced under the guidelines.
Sentence vacated and remanded for re-sentencing.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dixon v. State, 546 So. 2d 1194 (Fla. 3d DCA 1989)…d occurred prior to the effective date of the guidelines,4 the defendant had to make an affirmative selection to be resentenced under the guidelines; he made no such election. State v. Pentaude, 500 So. 2d 526, 528 (Fla.1987); Beceiro-Mesa v. State, 492 So. 2d 1148 (Fla. 3d DCA 1986); § 921.001(4)(a), Fla.Stat. (1987). Accordingly, the sentence is reversible on this basis alone. Defendant’s third claim is that his conviction and sentence for both armed robbery and display of a firearm during the commission of…
Authorities 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)
- Kimsey v. State, 467 So. 2d 333 (Fla. 2d DCA 1985)
- Ryan v. State, 482 So. 2d 558 (Fla. 2d DCA 1986)