HAROLD JENKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the appellant's prior armed robbery conviction should be scored as a first-degree felony, not a life felony, for sentencing guideline purposes.
[1] A prior conviction for armed robbery, where the degree of the felony cannot be determined from the record, should be scored as a first-degree felony for sentencing purpos…
[2] When scoring prior out-of-state convictions, the trial court must assign the score for the analogous or parallel Florida Statute.
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Join FLexlaw to unlock all legal intelligenceHarold Jenkins pleaded no contest to grand theft and appealed his sentence. He argued his prior 1965 armed robbery conviction was improperly scored as…
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GOSHORN, Judge.
Harold Jenkins appeals the sentence imposed following his plea of no contest to one count of grand theft. Because his sentence is within the allowable guideline range, we affirm.
Jenkins, relying on Johnson v. State, 525 So. 2d 964 (Fla. 1st DCA 1988), argues that the trial court incorrectly scored his 1965 armed robbery conviction as a life felony. The Johnson court, noting that at the time of Johnson’s prior conviction the crime of robbery in Florida was not divided by degree, held:
Where, as here, the felony has no degree at the time of the defendant’s conviction, we conclude the degree is “impossible to determine” in the language of Rule 3.701 d.5.(a)(3). The prior offense should therefore have been scored as a third-degree felony.
Id. at 966.
In the case at bar, had Jenkins been convicted of armed robbery out-of-state, his guideline scoring would be governed by Florida Rule of Criminal Procedure 3.701 d.5.(a)(2) which provides “When scoring federal, foreign, military, or out-of-state convictions, assign the score for the analogous or parallel Florida Statute.” We believe the same standard should apply to in-state convictions. Therefore, looking to the elements of Jenkins’ prior conviction,1 we conclude that because we cannot determine the type of weapon involved, his armed robbery conviction should be scored as a first degree felony.2 Reclassifying Jenkins’ prior conviction from a life felony to a first degree felony results in a reduction of 20 points and although it results in a one cell reduction, his sentence of 3½ years’ incarceration is still within the recommended guideline range. Accordingly, we affirm his sentence.
We note direct conflict with Johnson.
AFFIRMED.
DANIEL, C.J., and COWART, J., concur. . See Forehand v. State, 537 So. 2d 103 (Fla.1989).
. Section 812.13(2)(b), Florida Statutes (1989) states:
If in the course of committing the robbery the offender carried a weapon, then the robbery is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.-084.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Harris v. State, 674 So. 2d 110 (Fla. 1996)…t the 1967 conviction be scored as a first-degree felony. The scoring of Florida convictions for crimes committed before Florida classified crimes by degrees has been the source of some confusion in the district courts. See, e.g., Jenkins v. State, 556 So. 2d 1239 (Fla. 5th DCA 1990); Johnson v. State, 525 So. 2d 964 (Fla. 1st DCA 1988). In Jenkins, the Fifth District Court of Appeal was faced with the scoring of a 1965 Florida armed robbery conviction. The court there reasoned that had this been an out-of-st…
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Maynard Witherspoon v. State, 601 So. 2d 607 (Fla. 5th DCA 1992)…ious criminal offenses. The statute in effect from 1955 to 1971 did not provide any degrees for robbery, but it gave the sentencing judge the power to sentence a defendant to prison for life or any lesser term of years.2 We held in Jenkins v. State, 556 So. 2d 1239 (Fla. [*609] 5th DCA 1990) that a 1965 Florida armed robbery conviction, which fell under that older non-degreed statute, should be scored under the guidelines as a first degree felony, but not a life felony.3 Based on Jenkins, an out-of-state armed…
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Walsh v. State, 606 So. 2d 636 (Fla. 5th DCA 1992)…f robbery in Florida was not divided by degrees and the question is whether under Rule 3.701 d.5.a)3) the degree of the offense was “impossible to determine” and the out of state offenses must be scored as third degree felonies. In Jenkins v. State, 556 So. 2d 1239 (Fla.5th DCA 1990), this court held that under Forehand v. State, 537 So. 2d 103 (Fla.1989), the sentencing court should look to the elements of the defendant’s prior out of state conviction to determine the appropriate degree. The court went on to…
Authorities Cited
- Forehand v. State, 537 So. 2d 103 (Fla. 1989)
- Johnson v. State, 525 So. 2d 964 (Fla. 1st DCA 1988)