STATE OF FLORIDA, APPELLANT,
v.
WAYNE STEVEN CHENAULT, APPELLEE
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The court held that points should not be assessed against a defendant for committing a crime while in custody serving a sentence if that custody is an element of the crime itself.
The state appealed a guideline sentence, arguing the judge erred by not assessing additional points against the appellee. The appellee committed the c…
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DAUKSCH, Judge.
This is an appeal from a guideline sentence. The state maintains the sentencing judge erred in failing to assess points against appellee because he committed the crime while in custody serving a sentence. Rule 3.701(d)(6) in conjunction with Rule 3.988(i) says that persons who are in custody serving a sentence and who then commit another crime shall have twenty-four points scored against them, thus increasing the sentence in many cases.
The crime appellee committed was escape, so “in custody serving a sentence” is an element of the crime of escape and thus was factored into the primary offense at conviction. Without his having been in custody he would not have committed this crime of escape.
Brown v. State, 502 So. 2d 1293 (Fla. 1st DCA 1987) is on point and says “[t]his construction of the rule is consistent with the notion that legal constraint is an essential element of the crime of escape and thus should not be used as a ground for enhancing the sentence to be imposed.” This logic is inescapable,
AFFIRMED,
COBB and DANIEL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Canterbury v. State, 606 So. 2d 504 (Fla. 1st DCA 1992)…ape, it is improper to assess legal constraint points to enhance a sentence imposed upon conviction for escape. [*505] See Carnegie v. State, 564 So. 2d 233 (Fla. 1st DCA 1990); Brown v. State, 502 So. 2d 1293 (Fla. 1st DCA 1987); Chenault v. State, 543 So. 2d 1314 (Fla. 5th DCA 1989). Further, where a guidelines score-sheet error results in a reduced sentencing range of one or more cells, the sentence must be reversed for resentencing based upon a correctly calculated scoresheet. See Johnson v. State, 583 So…
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Sullivan v. State, 553 So. 2d 348 (Fla. 4th DCA 1989)…guidelines sheet, 12 points were assessed because the offense occurred while appellant was under legal restraint. The state concedes error in the inclusion of these points as legal constraint is an element of the crime of escape, State v. Chenault, 543 So. 2d 1314 (Fla. 5th DCA 1989). We therefore reverse and remand for resentencing in accordance with this opinion. HERSEY, C.J., and LETTS and WARNER, JJ., concur.…
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Marshall v. State, 560 So. 2d 810 (Fla. 2d DCA 1990)…straint pursuant to Florida Rule of Criminal Procedure 3.701(d)(6) was erroneous because such constraint is an essential element of the offense for which he was convicted. See Sullivan v. State, 553 So. 2d 348 (Fla. 4th DCA 1989); State v. Chenault, 543 So. 2d 1314 (Fla. 5th DCA 1989); Brown v. State, 502 So. 2d 1293 (Fla. 1st DCA 1987). See also, Miller v. State, 549 So. 2d 1106, 1109 (Fla. 2d DCA 1989). We need not resolve this question, however, because the addition of points for legal constraint did not…
Authorities Cited
- Brown v. State, 502 So. 2d 1293 (Fla. 1st DCA 1987)