RUFUS MITCHELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Appellant was convicted of the crimes of sexual battery, robbery and petit theft. The offenses were committed while appellant was on community control for the unrelated crimes of two counts of theft. A petition alleging violation of community control for these unrelated crimes was not before the court for sentencing. Appellant argues it was error for the trial court to increase his guidelines sentencing range by one cell due to his being on community control for unrelated crimes at the time of the instant offenses, while at the same time scoring legal constraint on the scoresheet. We agree.
When a defendant is sentenced only for a crime committed while he was already on probation, points should be scored for legal constraint. However, the one-cell increase pursuant to Florida Rule of Criminal Procedure 3.701(d)(14) for violation of probation is inapplicable because there has been no revocation of probation. Peters v. State, 531 So. 2d 121, 122 (Fla. 1988). We affirm the conviction but reverse and remand for resentencing within the guidelines and consistent with this opinion.
DOWNEY, STONE and POLEN, JJ., concur.
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Mitchell v. State, 567 So. 2d 1037 (Fla. 4th DCA 1990)…2d 1352 (Fla.1989), determined that the Palm Beach County special districting process was unconstitutional. Petitioner’s appellate counsel did not raise this issue at any time and the appeal was determined adversely to petitioner. Mitchell v. State, 549 So. 2d 780 (Fla. 4th DCA 1989). We have held that Spencer is not to be applied retroactively, see State v. Moreland, 564 So. 2d 1164 (Fla. 4th DCA 1990), but that is not the situation in the instant case. The supreme court has held that appellate counsel was…
Authorities Cited
- Peters v. State, 531 So. 2d 121 (Fla. 1988)