KENNETH GHIANULY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court affirmed Kenneth Ghianuly's convictions but remanded the case for correction of the judgment and sentence. The court found that the trial court erred by imposing costs as a condition for accruing gain time, as the relevant statute was not in effect at the time of the offenses, making the sentence an ex post facto violation.
The court held that the judgment should be corrected to reflect a conviction for simple assault on Count I, not aggravated assault. The court also held that conditioning gain time on the payment of costs under an ex post facto statute renders the sentence illegal and can be raised for the first time on appeal.
[1] A judgment may be corrected on appeal to reflect a conviction for simple assault rather than aggravated assault when the record supports such a correction.
[2] Conditioning the accrual of gain time upon the payment of costs imposed pursuant to a statute enacted after the commission of the crime violates the prohibition against e…
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“We find error in the judgment to the extent it indicates that Ghianuly was convicted for an aggravated assault as was alleged in Count I of the information.”
Establishes the court's finding of error regarding the specific assault conviction.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceKenneth Ghianuly was convicted of three counts of aggravated assault and two counts of false imprisonment. At sentencing, the trial court ordered Ghia…
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FRANK, Judge.
Kenneth Ghianuly appeals from the convictions and sentences arising from a five count information charging him with three acts of aggravated assault and two acts of false imprisonment.
We find error in the judgment to the extent it indicates that Ghianuly was convicted for an aggravated assault as was alleged in Count I of the information. We affirm the convictions, but remand for the entry of a corrected judgment to reflect that Ghianuly’s Count I conviction was for simple, not aggravated, assault. Jackson v. State, 487 So. 2d 1116 (Fla. 4th DCA 1986). That conviction, however, was properly scored as a misdemeanor and the appropriate sentence was imposed.
The record discloses that at sentencing, the trial court required Ghianuly to pay costs pursuant to section 27.3455, Florida Statutes (1985), in the amount of $200 as a condition of accruing gain time. The crimes for which Ghianuly was convicted occurred on June 17, 1985, prior to that statute’s effective date. Thus, the conditioning of gain time upon the payment of $200 rendered Ghianuly’s punishment more onerous than that which existed at the time of the crime and violated the prohibition against ex post facto sanctions. State v, Yost, 507 So. 2d 1099 (Fla.1987). The state, however, urges that Ghianuly is foreclosed from asserting the constitutional challenge because of his failure to object at trial. We disagree and recede from our decisions in Johnson v. State, 495 So. 2d 188 (Fla. 2d DCA 1986), and Treadway v. State, 500 So. 2d 308 (Fla. 2d DCA 1986). Thus application of the statute results in an illegal sentence, State v. Whitfield, 487 So. 2d 1045 (Fla.1986), and can be raised for the first time on appeal. Givens v. State, 501 So. 2d 758 (Fla. 5th DCA 1986). The trial court’s imposition of costs in the amount of $200 remains a part of Ghianuly’s sentence but we strike that portion conditioning the accrual of gain time.
This matter is remanded to the trial court for correction of the judgment which may be undertaken outside the presence of the defendant.
DANAHY, C.J., and SCHEB, RYDER, CAMPBELL, SCHOONOVER, LEHAN, HALL and THREADGILL, JJ., concur.
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Darrin Bartholemew Hamm v. State, 521 So. 2d 354 (Fla. 2d DCA 1988)…h he was sentenced. This timely appeal followed. The parties agree that the case must be remanded for the entry of a corrected judgment to reflect that the appellant was convicted of simple robbery rather than armed robbery. See Ghianuly v. State, 516 So. 2d 277 (Fla. 2d DCA 1987). [*355] Since the type and degree of crime is reflected and scored improperly on the scoresheet, we also remand this case for the preparation of an accurate scoresheet because without knowing the correct presumptive sentence, the…
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Swinson v. State, 588 So. 2d 296 (Fla. 5th DCA 1991)…te or other qualified offenses. ... (emphasis added) . Parrish v. State, 571 So. 2d 97 (Fla. 1st DCA 1990). . U.S. Const. Art. 1, § 10; Art. 1, § 10, Fla. Const. . Carnegie v. State, 564 So. 2d 233 (Fla. 1st DCA 1990). See also Ghianuly v. State, 516 So. 2d 277 (Fla. 2d DCA 1987). . Carter v. State, 571 So. 2d 520 (Fla. 4th DCA 1990), jurisdiction accepted, 581 So. 2d 163 (Fla. 1991); Green v. State, 570 So. 2d 1014 (Fla. 5th DCA 1990); Flowers v. State, 567 So. 2d 1055 (Fla. 5th DCA 1990); Walker v. Stat…
Authorities Cited
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- State v. Yost, 507 So. 2d 1099 (Fla. 1987)
- Johnson v. State, 495 So. 2d 188 (Fla. 2d DCA 1986)
- Treadway v. State, 500 So. 2d 308 (Fla. 2d DCA 1986)
- Givens v. State, 501 So. 2d 758 (Fla. 5th DCA 1987)
- Allen (N) Jackson v. State, 487 So. 2d 1116 (Fla. 4th DCA 1986)