FRANK BYRD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant was convicted of robbery and sentenced based on sentencing guidelines scoresheet that included seven points for victim injury. The court held that victim injury cannot be included in the scoresheet calculation because it is not an element of robbery, and therefore vacated and remanded for resentencing.
The court agreed that the trial court erroneously added victim injury points to the scoresheet because victim injury is not an element of robbery. This error resulted in appellant being placed in a higher presumptive sentencing category than warranted. The court vacated the sentence and remanded for resentencing, noting that while victim injury may not be included in the scoresheet calculation, it may still be used as a reason to depart from the guidelines.
[1] Victim injury may not be scored on a sentencing guidelines scoresheet if it is not an element of the offense of conviction.
[2] An erroneous addition of points for victim injury to a sentencing guidelines scoresheet, resulting in placement in a higher presumptive sentencing category, constitutes h…
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Join FLexlaw to unlock all legal intelligence“We agree with appellant that the trial court erroneously added points for victim injury, resulting in appellant having been placed in a higher presumptive sentencing category than he should have been.”
The court's holding that the trial court made an error in scoring victim injury points in the sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceFrank Byrd was convicted of robbery and sentenced to thirty months in prison. The trial court included seven points for victim injury in the sentencin…
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WEBSTER, PETER D., Associate Judge.
Appellant, defendant below, was convicted of robbery and sentenced to thirty months in prison. He appeals only his sentence, arguing that the trial court erroneously added seven points for victim injury to the sentencing guidelines scoresheet. He contends that victim injury should not have been scored because it is not an element of the offense of robbery. He further contends that the error was harmful because addition of the seven points placed him in a higher presumptive sentencing category.
We agree with appellant that the trial court erroneously added points for victim injury, resulting in appellant having been placed in a higher presumptive sentencing category than he should have been. See Rule 3.701(d)(7), Fla.R.Crim.P.; Vega v. State, 498 So. 2d 1294 (Fla. 5th DCA 1986); Ritts v. State, 491 So. 2d 1252 (Fla. 2d DCA 198.6); Smith v. State, 484 So. 2d 649 (Fla. 4th DCA 1986); Brown v. State, 474 So. 2d 346 (Fla. 1st DCA 1985); Toney v. State, 456 So. 2d 559 (Fla. 2d DCA 1984). Accordingly, we vacate the sentence and remand with directions that the trial court resen-tence appellant. In so doing, we note that, while victim injury may not be included on the scoresheet, it may be used as a reason to depart from the guidelines. See, e.g., Ritts v. State, 491 So. 2d 1252 (Fla. 2d DCA 1986); Self v. State, 487 So. 2d 391 (Fla. 1st DCA 1986); Parker v. State, 478 So. 2d 823 (Fla. 2d DCA 1985). But see Smith v. State, 484 So. 2d 649 (Fla. 4th DCA 1986) (“slight” victim injury not a clear and convincing reason for departure).
CONVICTION AFFIRMED; SENTENCE VACATED; and REMANDED with directions.
HERSEY, C.J., and WALDEN, J., concur.
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Byrd v. State, 516 So. 2d 107 (Fla. 4th DCA 1987)…PER CURIAM. We reverse the order sentencing appellant outside the guidelines. On remand from this court’s first consideration of this case in Byrd v. State, 503 So. 2d 434 (Fla. 4th DCA 1987), the trial court justified upward departure on the fact that “[t]he offense committed by this Defendant was extremely heinous in that the victim in this case was an eighty-six (86) year old, frail, blind person.” Neither advanc…
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Grandison v. State, 506 So. 2d 74 (Fla. 5th DCA 1987)…ega v. State, 498 So. 2d 1294 (Fla. 5th DCA 1986).3 SENTENCE VACATED; REMANDED FOR RESENTENCING. ORFINGER, SHARP and COWART, JJ., concur. . §§ 812.13(2)(c), 831.01, 831.02, Fla.Stat. (1985). . Fla.R.Crim.P. 3.701(d)(7). .See also Byrd v. State, 503 So. 2d 434 (Fla. 4th DCA 1987); Ritts v. State, 491 So. 2d 1252 (Fla. 2d DCA 1986).…
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Camerron v. State, 508 So. 2d 570 (Fla. 3d DCA 1987)…ourt’s inclusion of victim injury points in scoring the robbery conviction when physical contact does not constitute an element of the crime. Vaillant v. State, 490 So. 2d 1326 (Fla. 3d DCA 1986); see Fla.R.Crim.P. 3.701 d.7. See also Byrd v. State, 503 So. 2d 434 (Fla. 4th DCA 1987) (victim injury may not be scored because not element of robbery); Vega v. State, 498 So. 2d 1294 (Fla. 5th DCA 1986) (same); Ritts v. State, 491 So. 2d 1252 (Fla. 2d DCA 1986) (same); Wright v. State, 487 So. 2d 1176 (Fla. 1st DC…
Authorities Cited
- Bernie I. Parker v. State, 478 So. 2d 823 (Fla. 2d DCA 1985)
- Ritts v. State, 491 So. 2d 1252 (Fla. 2d DCA 1986)
- Toney v. State, 456 So. 2d 559 (Fla. 2d DCA 1984)
- Elvin Vega v. State, 498 So. 2d 1294 (Fla. 5th DCA 1986)
- Smith v. State, 484 So. 2d 649 (Fla. 4th DCA 1986)
- Olympian W. Condo. Ass'n, Inc. v. Olympian W., Inc., 474 So. 2d 346 (Fla. 3d DCA 1985)
- Brown v. State, 474 So. 2d 346 (Fla. 1st DCA 1985)
- Self v. State, 487 So. 2d 391 (Fla. 1st DCA 1986)