GEORGE THOMAS DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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George Thomas Davis appeals his convictions for sexual battery and lewd and lascivious assault upon a child. The appellate court affirms the convictions but reverses and remands for resentencing due to an error in the sentencing guidelines scoresheet that improperly scored the capital felony offense.
The court affirmed the convictions but reversed and remanded for resentencing because the sentencing guidelines scoresheet was improperly prepared. The capital felony should not have been scored, and the second degree felony should have been the primary offense on the scoresheet.
[1] Sentencing guidelines do not apply to capital felonies.
[2] A capital felony may be considered by the trial court as a reason for departing from the guidelines.
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Join FLexlaw to unlock all legal intelligence“Sentencing guidelines do not apply to capital felonies.”
Establishes the fundamental rule that capital felonies cannot be scored under sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceDavis was convicted of sexual battery (a capital offense) and lewd and lascivious assault upon a child (a second degree felony). The trial court sente…
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BARFIELD, Judge.
George Thomas Davis appeals his judgment and sentences for sexual battery and lewd and lascivious assault upon a child. The trial court sentenced appellant to the mandatory sentence called for by the sexual battery conviction and a concurrent fifteen year term on the conviction for lewd and lascivious assault. We affirm the convictions but reverse and remand for resentencing.
We find an error in the preparation in the sentencing guidelines scoresheet. The trial court scored the sexual battery, a capital offense, as the primary offense at conviction and the lewd and lascivious assault, a second degree felony, as an additional offense at conviction. Sentencing guidelines do not apply to capital felonies.
Appellant asserts that he was denied the benefit of an accurate scoresheet setting forth his recommended sentence because the capital felony was improperly scored as a life felony, citing Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984), and Lindsey v. State, 453 So. 2d 485 (Fla. 2d DCA 1984).
The State concedes that the recommended sentence was improperly calculated, that the capital felony should not have been scored, and that the primary offense should have been the second degree felony (lewd and lascivious assault). The State asserts, however, that the trial court “clearly expressed its intent to impose the maximum statutory sentence” by imposing the statutory maximum for the second degree felony to run concurrent with the mandatory minimum 25 years on the sexual battery conviction, and that on remand the trial court could use the companion capital felony conviction as a clear and convincing reason for departure.
We agree with appellant that even if the trial court intended to impose the maximum statutory sentence, appellant was entitled to an accurately prepared scoresheet from which the trial court could depart only if it provided a clear and convincing reason. A trial court must have the benefit of a properly prepared score-sheet before it can make a fully informed decision on whether to depart from the recommended sentence. Parker v. State, 478 So. 2d 823 (Fla. 2d DCA 1985); Scott v. State, 469 So. 2d 865 (Fla. 1st DCA 1985). Since the rules of criminal procedure do not provide a means of scoring a capital felony as an additional offense at conviction, a capital felony may be considered by the trial court as a reason for departing from the guidelines. Weems v. State, 469 So. 2d 128 (Fla.1985).
The sentence imposed for the conviction of lewd and lascivious assault is REVERSED and the case REMANDED to the trial court for resentencing.
SHIVERS and ZEHMER, JJ„ concur.
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Erickson v. State, 565 So. 2d 328 (Fla. 4th DCA 1990)…enied, 525 So. 2d 880 (1988); Hembree v. State, 519 So. 2d 1138, 1139 (Fla. 2d DCA 1988). This requirement applies even if the trial court expresses an intention to impose the maximum statutory sentence at the sentencing hearing. See Davis v. State, 493 So. 2d 82, 83 (Fla. 1st DCA 1986). The rationale for the rule is that the trial court might have imposed a different sentence had it had the benefit of a corrected score-sheet. See Dawson v. State, 532 So. 2d at 90. Cf. Myrick v. State, 461 So. 2d 1359 (Fla.…
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Jordan v. State, 728 So. 2d 748 (Fla. 3d DCA 1998)…ure sentence, that does not moot the claim of s coresheet error. "A trial court must have the benefit of a properly prepared scoresheet before it can make a fully informed decision on whether to depart from the recommended sentence.” Davis v. State, 493 So. 2d 82, 83 (Fla. 1st DCA 1986). “This is because the trial court may well not wish to depart, or to depart so extensively, from a guidelines sentence which is presumably substantially lower than the one which it previously considered.... ” Moore v. State,…
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Zeigler v. State, 647 So. 2d 272 (Fla. 4th DCA 1994)…range. However, because the trial judge may have imposed a different sentence had he the benefit of a properly calculated scoresheet, defendant’s sentence must be vacated. Dawson v. State, 532 So. 2d 89 (Fla. 4th DCA 1988); see also Davis v. State, 493 So. 2d 82 (Fla. 1st DCA 1986). On remand, the trial judge may resentence defendant, under the original terms, to two concurrent terms of 20 years in prison, followed by five years probation, as such a sentence is within the recommended guideline range. Accord…
Previewing 3 of 24 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Weems v. State, 469 So. 2d 128 (Fla. 1985)
- Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984)
- Bernie I. Parker v. State, 478 So. 2d 823 (Fla. 2d DCA 1985)
- Scott v. State, 469 So. 2d 865 (Fla. 1st DCA 1985)
- Lindsey v. State, 453 So. 2d 485 (Fla. 2d DCA 1984)