RUSSELL MARK BAILIE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Russell Bailie was convicted of two counts of marijuana sale and sentenced to eight and one-half years in prison plus various costs. On appeal, the court found the trial judge erred by denying Bailie the opportunity to elect sentencing under the guidelines and by imposing court costs under a statute that did not apply retroactively to his pre-guideline crimes.
The trial court erred on both counts. The defendant had the statutory right to affirmatively select sentencing under the guidelines even though the offenses predated the guidelines' effective date, and section 27.3455 does not apply retroactively to crimes committed before its July 1, 1985 effective date.
[1] A defendant may elect to be sentenced under the guidelines for felonies committed prior to October 1, 1983, if sentencing occurs after that date.
[2] A trial court errs by denying a defendant the opportunity to elect sentencing under the guidelines when applicable.
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Join FLexlaw to unlock all legal intelligence“The guidelines shall be applied ... to all felonies, except capital felonies and life felonies, committed prior to October 1, 1983, for which sentencing occurs after such date when the defendant affirmatively selects to be sentenced....”
Statutory basis for defendant's right to elect guidelines sentencing despite pre-guideline offense date
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Join FLexlaw to unlock all legal intelligenceBailie committed two marijuana sale offenses on March 16, 1982, and April 1, 1982. He was convicted on both counts. At the March 5, 1986 sentencing he…
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SCHEB, Acting Chief Judge.
Defendant Russell Mark Bailie was convicted on two counts of the sale of marijuana. On appeal he raises four points. We find merit only to defendant’s contentions that the trial judge erred by: (1) depriving him of the opportunity to be sentenced under the guidelines; and (2) requiring him to pay $200 court costs pursuant to section 27.3455(1) Florida Statutes (1985).
At the sentencing hearing on March 5, 1986, the trial judge ruled that the sentencing guidelines were inapplicable because the defendant’s offenses occurred in 1982 before the enactment of the guidelines. The court then proceeded to sentence the defendant to consecutive terms of five years and three and one-half years in state prison, for a total sentence of eight and one-half years. In addition to $50 court costs, the court also ordered the defendant to pay $200 pursuant to section 27.3455(1), Florida Statutes (1985); $20 pursuant to section 960.20; and $2 pursuant to section 943.25(4).
Section 921.001(4)(a), Florida Statutes (1985), provides that: “The guidelines shall be applied ... to all felonies, except capital felonies and life felonies, committed prior to October 1, 1983, for which sentencing occurs after such date when the defendant affirmatively selects to be sentenced....” Here, the trial court erred because its ruling deprived the defendant of the opportunity to elect sentencing in accordance with the guidelines. See § 921.001(4)(a); Schmitt v. State, 458 So. 2d 1183 (Fla. 5th DCA 1984).
The trial court also erred by imposing costs pursuant to section 27.3455, which became effective July .1, 1985. This court held in Bowman v. State, 495 So. 2d 868 (Fla. 2d DCA 1986), that section 27.3455 does not apply retroactively to crimes committed before the effective date of the statute. Here, the defendant’s crimes were committed on March 16, 1982, and April 1, 1982. Thus, the statute was inapplicable.
Accordingly, we reverse the defendant’s sentence and remand to allow the defendant to select to be resentenced under the guidelines. Additionally, we strike that portion of the judgment imposing $200 court costs assessed against the defendant pursuant to section 27.3455; we affirm imposition of the other costs.
RYDER and SCHOONOVER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Bowman v. State, 495 So. 2d 868 (Fla. 2d DCA 1986)
- Schmitt v. State, 458 So. 2d 1183 (Fla. 5th DCA 1984)