STATE OF FLORIDA, APPELLANT/CROSS-APPELLEE,
v.
JAMES DELMAR HUTCHESON, APPELLEE/CROSS-APPELLANT
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Florida appealed the sentencing of James Hutcheson for entering contraband marijuana into a correctional facility, arguing the trial court used the wrong sentencing guideline category. The court held that because the offense was not under Chapter 893, it should have been scored under category (9) rather than category (7), resulting in a higher presumptive sentencing range.
The court held that category (7) offenses were only meant to include those offenses under Chapter 893, Florida Statutes. Since the present felony was not contained in Chapter 893, it should have been scored on the category (9) scoresheet, resulting in a higher guideline sentencing range.
[1] A felony offense involving contraband, not listed under Chapter 893 of the Florida Statutes, must be scored under the "All Other Felony Offenses" category for sentencing…
[2] Sentencing under the incorrect scoresheet, which results in a lower presumptive guideline sentence, constitutes an error requiring remand.
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Join FLexlaw to unlock all legal intelligence“From the above it is apparent that category' (7) offenses were only meant to include those offenses under Chapter 893, Florida Statutes. Thus, since the present felony was not contained in Chapter 893, it should properly have been scored on the category (9) scoresheet.”
Establishes the court's interpretation that category (7) is limited to Chapter 893 offenses
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Join FLexlaw to unlock all legal intelligenceJames Hutcheson was convicted of entering contraband (marijuana) into a correctional facility in violation of section 944.47, Florida Statutes. The tr…
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COBB, Judge.
The state timely appeals the sentence of seven years’ incarceration given appellee, James D. Hutcheson, for the crime of entering contraband (marijuana) into a correction facility in violation of section 944.47, Florida Statutes (1985). The state contends that the trial court erred in utilizing a category (7) “Drugs” scoresheet instead of a category (9) “All Other Felony Offenses” scoresheet, thus resulting in a lower presumptive guideline sentence.
Two sentencing scoresheets were initially prepared on the matter. One looked at the offense as a category (7) offense, “Drugs,” and gave a total score of 205 points, placing Hutcheson within the guideline range of seven to nine years’ incarceration. The second scoresheet scored Hutcheson under category (9), “All Other Felony Offenses.” This scoresheet gave Hutcheson a total score of 350 points and placed him in a guideline sentencing range of 15 to 22 years in prison. The lower court scored Hutcheson utilizing the category (7) score-sheet because the contraband involved in the present case was drugs, and sentenced Hutcheson to seven years’ incarceration.
Florida Rule of Criminal Procedure 3.701(c) provides, in pertinent part:
Offenses have been grouped into nine (9) offense categories encompassing the following statutes:
* * * * * *
Category (7): Drugs: Chapter 893.
* * * * *
Category (9): All Other Felony Offenses.
The actual forms for categories (7) and (9) contained in the 1985 version of the rules (which were in effect at the time of this sentencing) provide the headings “Category (7): Drugs,” and “Category (9): All Other Felony Offenses.” From the above it is apparent that category' (7) offenses were only meant to include those offenses under Chapter 893, Florida Statutes. Thus, since the present felony was not contained in Chapter 893, it should properly have been scored on the category (9) scoresheet.1
As the lower court sentenced Hutcheson using an incorrect scoresheet, and since the utilization of the correct scoresheet would result in a higher sentencing guideline range, this case is remanded. On remand the trial court is instructed to sentence utilizing the category (9) scoresheet and either sentence within the guideline range or give appropriate reasons in writing to justify a departure from the guidelines.
REVERSED and REMANDED.
COWART, J., and DANIEL, C.W., Associate Judge, concur. . The recent amendment to Florida Rule of Criminal Procedure 3.988, effective July 1, 1986, is consistent with this position. This amendment adds to the title of the form for category (7) the words "Chapter 893.”
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Saud Tarawneh v. State, 588 So. 2d 1006 (Fla. 4th DCA 1991)…category applicable is Category 9, designated for “all other felony offenses.” See Vance v. State, 565 So. 2d 915 (Fla. 4th DCA), rev. dismissed, 574 So. 2d 144 (Fla.1990); Robertson v. State, 559 So. 2d 352 (Fla. 1st DCA 1990); State v. Hutcheson, 501 So. 2d 190 (Fla. 5th DCA 1987). GLICKSTEIN, C.J., and DOWNEY and ANSTEAD, JJ., concur.…
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Jones v. State, 610 So. 2d 105 (Fla. 3d DCA 1992)…ull definition of Category 4 is “Violent Personal Crimes: Chapters 784 and 836 and section 843.01 and subsection 381.411(4).” Fla.R.Crim.P. 3.701(c).2 Only the specifically enumerated offenses are included within Category 4.3 See State v. Hutcheson, 501 So. 2d 190, 191 (Fla. 5th DCA1987). Although aggravated child abuse might well be considered to be a violent personal crime in a generic sense, it has not been enumerated within the Category 4 group. That being so, the Category 4 scoresheet is inapplicable and…
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Robertson v. State, 559 So. 2d 352 (Fla. 1st DCA 1990)…t’s offense did involve a weapon, it is clear that category 8 score-sheets apply only to those weapons offenses which constitute violations of Chapter 790 or of section 944.40, and do not include violations of section 944.47. See Hutcheson v. State, 501 So. 2d 190 (Fla. 5th DCA 1987). Accordingly, appellant’s sentence is hereby AFFIRMED. WIGGINTON and BARFIELD, JJ., concur.…
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