ROBERT JEWETT FENNELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's robbery sentence was reversed because the trial court improperly included victim injury points in the sentencing guidelines calculation, as victim injury is not an element of robbery; murder conviction and sentence affirmed.
Victim injury points cannot be assessed in robbery sentencing guidelines calculations because victim injury is not an element of the robbery offense.
[1] Victim injury points should not be assessed in sentencing guidelines calculations for crimes where victim injury is not an element of the offense.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of first-degree murder and robbery. At sentencing, the trial judge included 21 points for victim injury in scoring the robbery…
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GRIMES, Judge.
Appellant appeals his sentences resulting from convictions for first-degree murder and robbery.
At sentencing, the trial judge included 21 points for victim injury in scoring appellant’s robbery conviction. This court has held that points for victim injury should not be assessed where victim injury is not an element of the crime. Toney v. State, 456 So. 2d 559 (Fla. 2d DCA 1984). Victim injury is not an element of the crime of robbery. Parker v. State, 478 So. 2d 823 (Fla. 2d DCA 1985). Therefore, the trial court improperly assessed victim injury in its calculation of appellant’s guidelines scoresheet. A declaration of 21 points reduces the guidelines range from 7-9 years to 5½-7 years. Since appellant’s seven-year sentence was at the bottom of the erroneous range, we cannot tell if the court would have entered the same sentence had the proper range been considered.
Accordingly, we affirm appellant’s convictions and the sentence he received for first-degree murder but reverse his robbery sentence and remand for resentencing. This renders moot appellant’s other contention that his written sentence for robbery did not precisely coincide with the sentence which was pronounced in open court.
DANAHY, C.J., and CAMPBELL, JJ., concur.
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Citator
Cited By
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Davis Gordon v. State, 571 So. 2d 1388 (Fla. 2d DCA 1990)…range, rather than at the lower end of the recommended range. Since it is not clear that the trial court would have entered the same sentence if it had understood the correct recommended range, this sentence must also be reversed. Fennell v. State, 496 So. 2d 897 (Fla. 2d DCA 1986). Finally, the five-year sentence for grand theft is the statutory maximum and falls below either guideline range. Accordingly, that sentence is affirmed. We reverse and remand for resentencing consistent with this opinion. SCHOO…
Authorities Cited
- Bernie I. Parker v. State, 478 So. 2d 823 (Fla. 2d DCA 1985)
- Toney v. State, 456 So. 2d 559 (Fla. 2d DCA 1984)