ROBERT FENNELL, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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Victim injury points may only be included in calculating a defendant's sentencing guidelines score if victim injury is a statutory element of the convicted offense.
[1] Victim injury may only be included in computing a defendant's sentencing guidelines scoresheet when it is a statutory element of the convicted offense.
[2] Points for victim injury cannot be included in a sentencing scoresheet if victim injury is not a statutory element of the offense for which the defendant was convicted.
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Join FLexlaw to unlock all legal intelligenceRobert Fennell was convicted of attempted second-degree murder and armed trespass. The trial court scored victim injury points on his sentencing guide…
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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 counts of attempted first-degree murder by stabbing, two counts of aggravated battery, and one count of armed burglary. At trial, the evidence established that Fennell inflicted injury upon the victims. Fennell was convicted of two counts of attempted second-degree murder and one count of armed trespass.
The trial court sentenced Fennell to fifteen years’ imprisonment on each of the attempted murder convictions, with the sentences to run concurrently. He was also sentenced to two years’ imprisonment for the armed trespass conviction to run concurrently with his other sentences. The fifteen-year sentence was arrived at through use of the sentencing guidelines scoresheet. The trial court assessed forty-two points against Fennell for victim injury, which brought his total score within a recommended imprisonment range of twelve-to-seventeen years.
Fennell contends that the trial court erred by including points for victim injury in his total score because victim injury is not an element of either offense for which he was convicted. He argues that Florida Rule of Criminal Procedure 3.701(d)(7) makes it clear that victim injury may only be scored when it is an element of the offense for which the defendant was con victed.1
The Fourth District Court of Appeal affirmed Fennell’s sentence on the basis of Moore v. State, 469 So. 2d 947 (Fla. 5th DCA 1985), disapproved, State v. Taylor, 487 So. 2d 294 (Fla.1986). The district court relied upon Moore for the proposition that victim injury may be included in computing the scoresheet when the specific injury is charged in the information and demonstrated by the evidence. Moore, 469 So. 2d at 948-49.
Thus, the issue presented is whether victim injury must be a statutory element of the offense at conviction or an element of the particular offense as charged in the information, in order to be scored on the sentencing guidelines scoresheet. We hold that, under the rule as it existed in 1986, victim injury may only be included in computing the scoresheet when it is a statutory element of the convicted offense.
Fennell correctly asserts that Florida Rule of Criminal Procedure 3.701(d)(7) requires that victim injury be scored only when it is an element of the convicted offense. The committee note to rule 3.701(d)(7) plainly states that “[tjhis provision implements the intention of the commission that points for victim injury be added only when the defendant is convicted of an offense ... which includes physical impact or contact.” The language of the rule is unambiguous and therefore must be construed according to its plain meaning. Florida 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 injury is not an element of either attempted second-degree murder or armed trespass, we hold that points for victim injury could not be included in computing Fennell’s total score.
Accordingly, we quash the decision of the district court of appeal and remand for further proceedings consistent with this opinion.
It is so ordered.
EHRLICH, C.J., and SHAW, BARKETT and GRIMES, JJ., concur. OVERTON and McDONALD, JJ., dissent.
. As the district court noted, this requirement was subsequently eliminated on July 1, 1987. See Florida Rules of Criminal Procedure Re: Sentencing Guidelines (Rules 3.701 and 3.988), 509 So. 2d 1088 (Fla.1987). However, because the instant offense occurred before that date, the amendment eliminating the requirement is not applicable. Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). The applicable version of rule 3.701(d)(7) states that "[v]ictim injury shall be scored if it is an element of any offenses at conviction.” The Florida Bar Re: Rules of Criminal Procedure (Sentencing Guidelines, 3.701, 3.988), 482 So. 2d 311, 314 (FIa.1985).
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Scipio v. State, 928 So. 2d 1138 (Fla. 2006)…ybe the rules should be changed. I would agree to refer the issue to the Florida Bar Criminal Rules Committee, or any other committee the majority deems appropriate. But the rules as written do not prohibit this conduct. See, e.g., Fennell v. State, 544 So. 2d 1017, 1018 (Fla.1989) (“The language of the [criminal procedure] rule is unambiguous and therefore must be construed according to its plain meaning.”). [*1157] The majority, however, concludes from our decision in State v. Evans, 770 So. 2d 1174 (Fla.200…
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Woodfin v. State, 553 So. 2d 1355 (Fla. 4th DCA 1989)…m to the oral pronouncement. Kelly v. State, 414 So. 2d 1117 (Fla. 4th DCA 1982). The written sentence did not reflect the oral pronouncement made by the trial court. We, therefore, reverse and remand for re-sentencing on this. See Fennell v. State, 544 So. 2d 1017 (Fla.1989). We stress that this opinion is limited to all of its facts. In Florida,,hearsay is not permitted except for recognized exceptions. One of the more poignant of these exceptions is section 90.803(23) which permits witnesses to repeat out-…
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KIO v. State, 624 So. 2d 744 (Fla. 1st DCA 1993)…amended rule did not go into effect until May 30, 1991. See Ch. 91-270, § 4, Laws of Fla. The scoresheet used at sentencing must be calculated in accordance with the guidelines in existence when the subject offenses were committed. Fennell v. State, 544 So. 2d 1017 (Fla.1989). Because the offenses at issue here were committed January 11, 1991, nearly five months before the effective date of the amended rule, victim injury points in this case must be assessed in accordance with the rule which proscribed "double…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Miller v. Florida, 482 U.S. 423 (U.S. 1987)
- The Fla. Bar re: Rules of Crim. Procedure (sentencing Guidelines, 482 So. 2d 311 (Fla. 1985)
- 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)
- Baker v. State, 526 So. 2d 202 (Fla. 4th DCA 1988)
- Smith v. State, 501 So. 2d 139 (Fla. 2d DCA 1987)
- State v. Lenard Taylor, 487 So. 2d 294 (Fla. 1986)
- Fennell v. State, 528 So. 2d 1212 (Fla. 4th DCA 1988)
- Hamlin v. State, 528 So. 2d 1329 (Fla. 5th DCA 1988)
- Daniels v. State, 524 So. 2d 1117 (Fla. 2d DCA 1988)