ROBERT FENNELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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STONE, Judge.
Appellant was convicted of two counts of attempted second-degree murder. The information had charged attempted first-degree murder “by stabbing” his victims. The guidelines scoresheet used in sentencing included points for victim injury. The defendant correctly asserts the rule applicable at the time of sentencing that victim injury could only be properly scored if it was an element of the offense.1 See Fla.R. Crim.P. 3.701(d)(7); Massard v. State, 501 So. 2d 1289 (Fla. 4th DCA 1986), rev. dismissed, 504 So. 2d 403 (Fla.1987); Clifford v. State, 518 So. 2d 983 (Fla.2d DCA 1988); Smith v. State, 501 So. 2d 139 (Fla.2d DCA 1987); Wright v. State, 487 So. 2d 1176 (Fla. 1st DCA 1986). See also Mathis v. State, 515 So. 2d 214 (Fla.1987); State v. Whitfield, 487 So. 2d 1045 (Fla.1986).
However, victim injury may be included in computing the sentencing scoresheet for an attempted homicide, even without regard to the rule amendment, where the specific injury is charged in the information and demonstrated by the evidence. Cf. Moore v. State, 469 So. 2d 947 (Fla. 5th DCA 1985), quashed on other grounds, 489 So. 2d 1130 (Fla.1986).
The judgment and sentence are, therefore, affirmed.
ANSTEAD and DELL, JJ., concur. . We note that this requirement has subsequently been eliminated. See Florida Rules of Criminal Procedure Re Sentencing Guidelines (Rules 3.701 and 3.988), 509 So. 2d 1088 (Fla.1987).
However, this amendment is not applicable here. Miller v. Florida, — U.S. —, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987).
PER CURIAM.
We grant appellant’s motion, in part, for the purpose of adding the following certification to the opinion issued May 18, 1988:
We certify conflict with Smith v. State, 501 So. 2d 139 (Fla. 2d DCA 1987).
In all other respects, the motion for rehearing is denied.
ANSTEAD, DELL and STONE, JJ., concur.
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Fennell v. State, 544 So. 2d 1017 (Fla. 1989)…KOGAN, Justice. We have for review Fennell v. State, 528 So. 2d 1212 (Fla. 4th DCA 1988), certified to be in conflict with Smith v. State, 501 So. 2d 139 (Fla. 2d DCA 1987). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. On November 18, 1986, the petitioner, Robert Fennell, was charged by information with two…
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Williams v. State, 537 So. 2d 195 (Fla. 2d DCA 1989)…3.701, 3.988), 482 So. 2d 311 (Fla.1985). Victim injury is not an element of the offense of robbery; Toney v. State, 456 So. 2d 559 (Fla. 2d DCA 1984); nor, unless specifically pled in the charging instrument, of attempted murder. Fennell v. State, 528 So. 2d 1212 (Fla. 4th DCA 1988); Smith v. State, 501 So. 2d 139 (Fla. 2d DCA 1987). Accordingly, Williams must be resentenced utilizing a corrected scoresheet. Affirmed in part, reversed in part, and remanded with directions. RYDER, A.C.J., and FRANK and AL…
Authorities Cited (14 total)
- Miller v. Florida, 482 U.S. 423 (U.S. 1987)
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- FLA. RULES OF CRIM. PROCEDURE RE SENTENCING GUIDELINES (RULES 3.701 & 3.988), 509 So. 2d 1088 (Fla. 1987)
- Moore v. State, 469 So. 2d 947 (Fla. 5th DCA 1985)
- Mathis v. State, 515 So. 2d 214 (Fla. 1987)
- Bondurant v. Nickolas P. Geeker, 515 So. 2d 214 (Fla. 1987)
- Wright v. State, 487 So. 2d 1176 (Fla. 1st DCA 1986)
- Massard v. State, 501 So. 2d 1289 (Fla. 4th DCA 1986)
- Clifford v. State, 518 So. 2d 983 (Fla. 2d DCA 1988)
- State v. Moore, 489 So. 2d 1130 (Fla. 1986)