TERRY G. MIXON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Terry Mixon appealed his sentence for dealing in stolen property, arguing he was sentenced under Florida's sentencing guidelines without affirmatively selecting to do so. The court reversed his sentence for the 1983 dealing in stolen property conviction and remanded for resentencing, while affirming his sentence for the 1984 grand theft conviction which properly fell under the guidelines.
The court held that Mixon was improperly sentenced under the guidelines for the 1983 dealing in stolen property conviction without affirmative selection and reversed that sentence for resentencing. The court affirmed the grand theft sentence as properly imposed under the guidelines since that offense occurred after the guidelines' effective date. The absence of a scoresheet was irrelevant regarding the grand theft conviction since the trial court was informed of the recommended guidelines sentence.
[1] A defendant must affirmatively select to be sentenced under sentencing guidelines for offenses committed prior to the effective date of the guidelines.
[2] When a defendant is resentenced under sentencing guidelines, a scoresheet must be prepared.
Previewing 2 of 4 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 recommended guidelines sentence, scoring both the underlying offense of dealing in stolen property and the grand theft conviction, was community control or twelve to thirty months incarceration”
Establishes what the state recommended as the proper guidelines sentence
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Join FLexlaw to unlock all legal intelligenceMixon pleaded nolo contendere on March 9, 1984, to dealing in stolen property for an offense committed January 14, 1983, receiving withheld adjudicati…
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CAMPBELL, Judge.
On March 9, 1984, appellant pled nolo contendere to a charge of dealing in stolen property (case number 83-14851). Adjudication was withheld and he was placed on two years probation. It was alleged in the information that the offense was committed on January 14,1983. On September 26, 1984, appellant was charged by information with second degree grand theft (case number 84-9533). An affidavit of violation of probation and a warrant were filed.
A revocation hearing was held. Appellant pled guilty to the violation of probation charge (case number 83-14851) and the grand theft charge (case number 84-9533). The state attorney informed the trial court that the recommended guidelines sentence, scoring both the underlying offense of dealing in stolen property and the grand theft conviction, was community control or twelve to thirty months incarceration. Appellant was sentenced to thirty months incarceration on the dealing in stolen property conviction and five years probation on the grand theft conviction, to run consecutively. No guidelines scoresheet was included in the record.
On appeal, appellant urges us to reverse on the ground that he was sen-fenced under the guidelines for the 1983 dealing in stolen property conviction without the benefit of an affirmative selection. The state concedes that appellant did not select to be sentenced under the guidelines; therefore, we must reverse the sentence imposed for the dealing in stolen property conviction and remand for resentencing. See Coleman v. State, 486 So. 2d 43 (Fla. 2d DCA 1986); Adams v. State, 483 So. 2d 121 (Fla. 2d DCA 1986); Ryan v. State, 482 So. 2d 558 (Fla. 2d DCA 1986). Should appellant select to be sentenced under the guidelines on remand, a scoresheet must be prepared. Fla.R.Crim.P. 3.701(d)(1); Gause v. State, 491 So. 2d 320 (Fla. 2d DCA 1986); Adams.
Appellant was properly sentenced under the guidelines for the grand theft conviction since the offense occurred after the effective date of the guidelines. See In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So. 2d 848 (Fla.1983). The absence of a guidelines scoresheet in the record is irrelevant in regards to the grand theft conviction since the trial court had been informed of the recommended guidelines sentence. Davis v. State, 461 So. 2d 1361 (Fla. 2d DCA 1985).
Accordingly, this case is reversed and remanded for proceedings in accordance with this opinion.
DANAHY, C.J., and GRIMES, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Tyner v. State, 508 So. 2d 565 (Fla. 2d DCA 1987)…ve date of the guidelines. Appellee concedes that the plea colloquy does not establish an affirmative election of the guidelines for that offense. Accordingly, we reverse the sentence for the 1983 offense and remand for resentencing. Mixon v. State, 497 So. 2d 720 (Fla. 2d DCA 1986). Next, the appellant challenges the court’s imposition of public defender fees for the 1985 offense without notice and opportunity to be heard. We must also agree with this contention. The record contains an affidavit of insolven…
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Bravo v. State, 499 So. 2d 71 (Fla. 3d DCA 1986)…We affirm the adjudication and sentence without prejudice to defendant raising the issue pertaining to ineffectiveness of counsel in a motion pursuant to Florida Rule of Criminal Procedure 3.850. The remaining point lacks merit. See Mixon v. State, 497 So. 2d 720 (Fla. 2d DCA 1986); Stokes v. State, 476 So. 2d 313 (Fla. 1st DCA 1985). Affirmed.…
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Price v. State, 693 So. 2d 115 (Fla. 2d DCA 1997)…3.702(d)(2) requires the preparation of a scoresheet and that the sentencing judge review it for accuracy. We reject the State’s argument that the absence of a scoresheet is irrelevant here finding the eases cited for that argument, Mixon v. State, 497 So. 2d 720 (Fla. 2d DCA 1986), and Davis v. State, 461 So. 2d 1361 (Fla. 2d DCA), review denied, 471 So. 2d 43 (Fla.1985), distinguishable. We reverse the sentence under review and remand for resentencing with a properly prepared scoresheet. DANAHY, A.C.J.…
Authorities Cited
- In re Rules of Criminal Procedure (sentencing Guidelines), 439 So. 2d 848 (Fla. 1983)
- Davis v. State, 461 So. 2d 1361 (Fla. 2d DCA 1985)
- Florine Adams v. State, 483 So. 2d 121 (Fla. 2d DCA 1986)
- Ryan v. State, 482 So. 2d 558 (Fla. 2d DCA 1986)
- Gause v. State, 491 So. 2d 320 (Fla. 2d DCA 1986)
- Coleman v. State, 486 So. 2d 43 (Fla. 2d DCA 1986)