DAVID BRYAN STANDLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Appellant contends, and the state concedes, that the trial court erred in assessing points for victim injury on the guidelines scoresheet. At the time appellant’s crime was committed, these points could not be included on the scoresheet
because victim injury was not an element of the offense for which appellant was convicted. See Fennell v. State, 544 So. 2d 1017 (Fla.1989); Baker v. State, 526 So. 2d 202 (Fla. 4th DCA 1988). Accordingly, we reverse appellant’s sentences and remand for correction of the scoresheet and resentencing.
The state contends that the trial court erred in not reclassifying appellant’s offense of attempted sexual battery with a deadly weapon to a first-degree felony. This argument is without merit because section 775.087(1), Florida Statutes (1987), excepts from such reclassification a felony, as that in this case, in which, pursuant to sections 794.011(3) and 777.04, Florida Statutes (1987), the use of a weapon is an essential element.
Reversed and remanded for resentencing.
SCHEB, A.C.J., and LEHAN and PARKER, JJ., concur.
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Ellis v. State, 608 So. 2d 514 (Fla. 5th DCA 1992)….Stat. (1991). However, because the use of a weapon is an essential element of the offense of attempted sexual battery while armed, it was error to use the weapon to reclassify the offense to a higher degree under section 775.087. Standley v. State, 554 So. 2d 1200 (Fla. 2d DCA 1989). The State recognizes that under the habitual violent offender statute, the maximum sentence that can be imposed for a second degree felony is 30 years. However, the State argues that upon remand the trial court should not be req…
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Campbell v. Fla. Parole Comm'n, 573 So. 2d 100 (Fla. 1st DCA 1991)…dge. The trial court’s order denying the petition for writ of mandamus on the ground that “[t]he Florida Parole and Probation Commission has the ultimate discretion in deciding whether to parole” is REVERSED. Florida Parole Commission v. Padovano, 554 So. 2d 1200 (Fla. 1st DCA 1989), rev. den., 564 So. 2d 488 (Fla.1990). The case is REMANDED to the trial court for a ruling on the merits of the petition. JOANOS and WOLF, JJ., concur.…
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Dues v. State, 716 So. 2d 282 (Fla. 1st DCA 1998)…tutes. A defendant convicted of a felony in this degree may be habitualized. Burdick v. State, 594 So. 2d 267 (Fla.1992). Re-classification of this crime to a life felony pursuant to section 775.087(l)(a) would have been improper. Standley v. State, 554 So. 2d 1200 (Fla. 2d DCA 1989). AFFIRMED IN PART, REVERSED IN PART, and REMANDED FOR FURTHER PROCEEDINGS. BARFIELD, C.J., and KAHN and WEBSTER, JJ., concur.…
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- Fennell v. State, 544 So. 2d 1017 (Fla. 1989)
- Baker v. State, 526 So. 2d 202 (Fla. 4th DCA 1988)