TOMMY BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tommy Brown appealed his escape conviction sentence, challenging the trial court's improper inclusion of 24 points for 'legal constraint' in calculating his sentencing guidelines scoresheet. The appellate court held that being arrested and in custody—the basis for the escape charge itself—does not constitute the type of 'legal constraint' contemplated by sentencing guidelines and therefore reversed and remanded for resentencing.
The court held that it was error to include the 24 points for 'legal constraint' because being arrested and in police custody—the basis for the escape charge itself—does not constitute the type of legal constraint contemplated by Rule 3.701(d)(6). The court also held that sentencing errors may be reviewed even without contemporaneous objection, citing State v. Whitfield.
[1] A defendant may seek review of an improperly calculated sentencing guidelines scoresheet even if no contemporaneous objection was made at sentencing.
[2] Points for "legal constraint" under Florida Rule of Criminal Procedure 3.701(d)(6) should not be assessed when the legal constraint is the custody from which the defendan…
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Join FLexlaw to unlock all legal intelligence“Legal status at time of offense is defined as follows: Offenders on parole, probation, or community control; in custody serving a sentence; escapees; fugitives who have fled to avoid prosecution or who have failed to appear for a criminal judicial proceeding or who have violated conditions of a supersedeas bond; and offenders in pretrial intervention or diversion programs.”
The rule defining what constitutes legal constraint under sentencing guidelines
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Join FLexlaw to unlock all legal intelligenceBrown was arrested for driving without a valid license and subsequently escaped from a police vehicle. He entered a plea agreement providing for a sen…
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ZEHMER, Judge.
Appellant, Tommy Brown, appeals the sentence imposed upon his conviction for escape, complaining that the guidelines scoresheet was improperly calculated. We grant appellant’s request for a belated appeal. Long v. Wainwright, 474 So. 2d 7 (Fla. 1st DCA 1985), pet. for rev. denied, 482 So. 2d 350 (Fla.1986).
Brown was charged with escape from a police vehicle after his arrest for driving without a valid license. Thereafter, he entered into a plea agreement whereby he would plead nolo contendere to the escape charge in exchange for a sentence at the lower end of the sentencing guidelines range. The sentencing guidelines score-sheet assessed twenty-four points for appellant’s being “under legal constraint” at the time of the offense, resulting in a recommended sentence of three and one-half to four and one-half years. The “legal constraint” referred to was appellant’s custody in the police vehicle, from which he escaped. Appellant did not object at the time of sentencing that the point assessment was improper. The trial court accepted the plea and sentenced appellant to three and one-half years’ incarceration, the lowest range of the guidelines. Had the twenty-four points for “legal constraint” not been included, the recommended guidelines range would have been two and one-half to three and one-half years’ incarceration.
First, the state’s contention that we cannot review this error because no contemporaneous objection was made at sentencing has been determined adversely to the state’s position in State v. Whitfield, 487 So. 2d 1045 (Fla.1986). See also Brun-son v. State, 489 So. 2d 1159 (Fla. 1st DCA 1986). Second, we hold that it was error to include the twenty-four points for “legal constraint.” Rule 3.701(d)(6), Florida Rules of Criminal Procedure, provides:
Legal status at time of offense is defined as follows: Offenders on parole, probation, or community control; in custody serving a sentence; escapees; fugitives who have fled to avoid prosecution or who have failed to appear for a criminal judicial proceeding or who have violated conditions of a supersedeas bond; and offenders in pretrial intervention or diversion programs.
At the time of his escape, Brown was under arrest for driving without a valid license. His status as arrestee from which he escaped is not the kind of legal constraint contemplated by rule 3.701(d)(6). As we read the rule, it contemplates legal constraint as a result of some offense other than the constraint giving rise to the escape charge. This construction of the rule is consistent with the notion that legal constraint is an essential element of the crime of escape and thus should not be used as a ground for enhancing the sentence to be imposed.
Since a proper calculation of appellant’s scoresheet would place him in a guidelines range of two and one-half to three and one-half years, and since the plea agreement contemplated a sentence at the low end of the guidelines range (which the trial judge previously did), we cannot conclude, as urged by the state, that the error is harmless. Accordingly, we reverse and remand for resentencing.
REVERSED and REMANDED.
WENTWORTH, J., and HALL, J. LEWIS, Jr., Associate Judge, concur.
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Citator
Cited By
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Louie Anthony Sellers v. State, 578 So. 2d 339 (Fla. 1st DCA 1991)…more cells, the sentence should be vacated and the cause remanded for resentencing upon a properly calculated scoresheet. E.g., White v. State, 537 So. 2d 196 (Fla. 2d DCA 1989); Thorn v. State, 529 So. 2d 363 (Fla. 2d DCA 1988). In Brown v. State, 502 So. 2d 1293 (Fla. 1st DCA 1987), the defendant was sentenced to 3-½ years imprisonment pursuant to a guidelines scoresheet that improperly included points for legal constraint, resulting in a total score that called for a range of 3V2 to 4½ years. We rejected t…
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Raynold Hayward v. State, 590 So. 2d 976 (Fla. 5th DCA 1991)…tate, 578 So. 2d 339 (Fla. 1st DCA), decision approved, 586 So. 2d 340 (Fla.1991), recently summarized the circumstances under which scoresheet errors require resentencing. See also Dawson v. State, 532 So. 2d 89 (Fla. 4th DCA 1988); Brown v. State, 502 So. 2d 1293 (Fla. 1st DCA 1987). In this case, recalculation of defendant's scoresheet would place him within the next lowest cell. While the sentence is not in excess of that permitted by the guidelines, given that the trial judge sentenced defendant to the m…
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Burkhalter v. State, 578 So. 2d 345 (Fla. 1st DCA 1991)…de to the trial court. Contrary to the state’s argument, error that results from an incorrectly calculated scoresheet may be reviewed at any time without contemporaneous objection at trial. State v. Whitfield, 487 So. 2d 1045 (1986); Brown v. State, 502 So. 2d 1293 (Fla. 1st DCA 1987); rule 3.800, Fla.R.Crim.P. [*347] The sentences are VACATED and the cause is REMANDED with directions to sentence Burkhalter within the permitted range of the one-cell increase using the original scoresheet. BOOTH and WOLF, JJ.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- Long v. Louie L. Wainwright, 474 So. 2d 7 (Fla. 1st DCA 1985)
- Brunson v. State, 489 So. 2d 1159 (Fla. 1st DCA 1986)