JOHN R. WEAKLAND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Weakland appeals his 17-year sentence for sexual battery and false imprisonment, arguing that his prior 1972 Kansas attempted rape conviction was improperly scored as a second-degree felony rather than a third-degree felony under Florida sentencing guidelines. The court agreed and reversed, holding that when the degree of a prior felony is ambiguous, it must be scored in the defendant's favor.
The court held that because the Kansas record does not indicate with sufficient certainty that the prior attempted rape offense should be scored as a second-degree felony, the ambiguity must be resolved in favor of the defendant, and the conviction should be scored as a third-degree felony.
[1] When the degree of a prior felony offense is ambiguous or impossible to determine for sentencing guideline purposes, the offense must be scored as a third-degree felony.
[2] Any uncertainty in the scoring of a defendant's prior criminal record shall be resolved in favor of the defendant.
Previewing 2 of 3 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“Where the degree of the felony is ambiguous or impossible to determine, score the offense as a third-degree felony.”
Establishes the governing rule that ambiguities in prior felony scoring must default to the lower offense degree.
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Join FLexlaw to unlock all legal intelligenceWeakland was convicted of sexual battery and false imprisonment and sentenced to 17 years in prison. At sentencing, the trial court scored his prior 1…
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THREADGILL, Judge.
John Weakland, convicted of sexual battery and false imprisonment, appeals his sentence to state prison for seventeen years to be followed by probation. He argues that a 1972 conviction for attempted rape in Kansas was scored improperly as a second-degree felony rather than as a third-degree felony, and thus put him in a higher category on the sentencing guidelines scoresheet. We agree and reverse.
The state argues that the attempted rape in Kansas was a Class “C” felony, punishable by up to twenty years in prison, and is comparable to a second-degree felony in Florida, punishable by up to fifteen years in prison. Therefore, the state contends, the offense was properly scored pursuant to 3.701(d)(5)(a)(2), Florida Rules of Criminal Procedure (1987).
We would concur with the state except that the charging document in Kansas stated that the penalty for the attempted rape was to be assessed pursuant to “penalty-sec. 21-4501(e)” which provides a maximum penalty of up to five years in prison. Further, the appellant was sentenced to a term not to exceed five years. The written judgment and sentence also reflected that sentencing was pursuant to penalty section 21-4501(e).
Florida Rule of Criminal Procedure 3.701(d)(5)(a)(3) provides in part that “[wjhere the degree of the felony is ambiguous or impossible to determine, score the offense as a third-degree felony.” Additionally, in comments and notes on this rule, the committee stated that “any uncertainty in the scoring of the defendant’s prior record shall be resolved in favor of the defendant....”
We therefore conclude that because the Kansas record does not indicate with sufficient certainty that the prior offense of attempted rape should be scored as a second-degree felony, the uncertainty should have been resolved in favor of the appellant. See Doner v. State, 515 So. 2d 1368 (Fla. 2d DCA 1987); Roberts v. State, 507 So. 2d 761 (Fla. 1st DCA 1987). Scoring the conviction as a third-degree felony will result in a recommended guideline sentence of nine to twelve years rather than twelve to seventeen years.
Accordingly we reverse and remand for resentencing consistent with this opinion.
SCHEB, A.C.J., and FRANK, J., concur.
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Forehand v. State, 524 So. 2d 1054 (Fla. 1st DCA 1988)…7); Noland v. State, 489 So. 2d 873 (Fla. 1st DCA 1986); Robbins v. State, 482 So. 2d 580 (Fla. 5th DCA 1986); Rodriguez v. State, 472 So. 2d 1294 (Fla. 5th DCA 1985); Arquilla v. State, 464 So. 2d 716 (Fla. 4th DCA 1985). But see Weakland v. State, 520 So. 2d 311 (Fla. 2d DCA 1988); Doner v. State, 515 So. 2d 1368 (Fla. 2d DCA 1987). We followed such an analysis in Noland v. State. In Noland, the issue involved the scoring of two prior Indiana convictions. The record disclosed that the defendant had two pri…1 / 2
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Drawdy v. State, 525 So. 2d 993 (Fla. 1st DCA 1988)…d served one year probation. Also, 3.701(d)(5)(a)(3) Florida Rules of Criminal Procedure, provides that ambiguous felonies shall be scored as third degree felonies. Any uncertainty should be resolved in favor of the appellant. See Weakland v. State, 520 So. 2d 311 (Fla. 2d DCA 1988); Roberts v. State, 507 So. 2d 761 (Fla. 1st DCA 1987). Further, we agree with appellant that the original crime of receiving stolen property, now merged with the theft statute, was designated a third degree felony. See § 812.031(2…
Authorities Cited
- Verne Albert Doner v. State, 515 So. 2d 1368 (Fla. 2d DCA 1987)
- Doyal Powell Roberts v. State, 507 So. 2d 761 (Fla. 1st DCA 1987)