PHILLIP HAMLIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
DAUKSCH, Judge.
This is an appeal from a sentence. Appellant was convicted of leaving the scene of an accident involving injuries. § 316.027, Fla.Stat. (1983). The sentencing judge scored points on the sentencing guidelines scoresheet for victim injury. This was error because victim injury is not an element of the crime. Benedict v. State, 475 So. 2d 1000 (Fla. 5th DCA 1985); Motyka v. State, 457 So. 2d 1114 (Fla. 1st DCA 1984). The sentence is vacated and the cause remanded for resentencing.
SENTENCE VACATED, REMANDED.
DANIEL, J., concurs.
ORFINGER, J., dissents with opinion.
ORFINGER, Judge,
dissenting.
I dissent because no purpose is served by vacating the sentence and sending it back for resentencing. With the points for victim injury included, the recommended sentence was any non-state prison sanction. With these points excluded, the recommended sentence will be exactly the same. There is nothing lower for a felony conviction. The trial judge bumped the sentence into the next higher cell because of defendant’s violation of probation, which he can do. Therefore, with or without the points for victim injury, the sentence will be the same, and is a lawful sentence. I would affirm.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Fennell v. State, 544 So. 2d 1017 (Fla. 1989)…courts have consistently carried out the expressed purpose of the rule by requiring that points for victim injury may only be included in computing a defendant’s scoresheet if it is a statutory element of the convicted offense. See Hamlin v. State, 528 So. 2d 1329 (Fla. 5th DCA 1988); Russell v. State, 528 So. 2d 522 (Fla. 2d DCA 1988); Baker v. State, 526 So. 2d 202 (Fla. 4th DCA 1988); Daniels v. State, 524 So. 2d 1117 (Fla. 2d DCA 1988); Smith v. State, 501 So. 2d 139 (Fla. 2d DCA 1987). Since victim inju…
-
Alphonse Kelly v. State, 552 So. 2d 1140 (Fla. 5th DCA 1989)…r. However the jury expressly found him not guilty of aggravated assault, ostensibly exercising its “jury pardon power.” Therefore, the aggravated assault charge cannot be the underlying felony to sustain the firearm charge. See Wainwright v. State, 528 So. 2d 1329 (Fla. 5th DCA 1988) and cases cited therein. The firearm charge thus depends solely on the armed burglary count. Under a Carawan analysis, this constitutes dual punishment for a single evil contrary to legislative intent. See Hall v. State, 517 So.…
Authorities Cited
- Motyka v. State, 457 So. 2d 1114 (Fla. 1st DCA 1984)
- Benedict v. State, 475 So. 2d 1000 (Fla. 5th DCA 1985)