DONALD LEE KELLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
We affirm. However as in Flowers v. State, 567 So. 2d 1055 (Fla. 5th DCA 1990), we certify to the supreme court the following question:
DO FLORIDA’S UNIFORM SENTENCING GUIDELINES REQUIRE THAT LEGAL CONSTRAINT POINTS BE ASSESSED FOR EACH OFFENSE COMMITTED WHILE UNDER LEGAL CONSTRAINT?
AFFIRMED. HARRIS and GRIFFIN, JJ., concur. COWART, J., dissents with opinion.
COWART, Judge,
dissenting.
See the dissents in Flowers v. State, 567 So. 2d 1055 (Fla. 5th DCA 1990); Znajmiecki v. State, 569 So. 2d 531 (Fla. 5th DCA 1990), rev. granted, 577 So. 2d 1331 (Fla.1991); Natvik v. State, 574 So. 2d 1230 (Fla. 5th DCA 1991); and Adams v. State, 577 So. 2d 963 (Fla. 5th DCA 1991). See also, contrary to the majority decision herein, Sellers v. State, 578 So. 2d 339 (Fla. 1st DCA 1991); Lewis v. State, 574 So. 2d 245 (Fla. 2d DCA 1991); Worley v. State, 573 So. 2d 1023 (Fla. 2d DCA 1991); Scott v. State, 574 So. 2d 247 (Fla. 2d DCA 1991); and Cabrera v. State, 576 So. 2d 1358 (Fla. 3d DCA 1991). See also the supreme court’s consideration of a petition by the Florida Sentencing Guidelines Commission to clarify the committee notes appended to Rule 3.701d.6., wherein the commission states it was never intended to permit the scoring of “legal status points” for each offense committed while the defendant was under legal constraint, regardless of the number of offenses and that such multiple scoring sometimes results in penalties out of proportion to the offense. Florida Rules of Criminal Procedure re: Sentencing Guidelines, 576 So. 2d 1307 (Fla. 1991).
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Rivera v. State, 586 So. 2d 1060 (Fla. 1991)…41 (Fla. 5th DCA 1991), Shiel v. State, 576 So. 2d 931 (Fla. 5th DCA 1991), Gantt v. State, 576 So. 2d 932 (Fla. 5th DCA 1991), Dussault v. State, 578 So. 2d 430 (Fla. 5th DCA 1991), Isom v. State, 578 So. 2d 431 (Fla. 5th DCA 1991), Kelly v. State, 578 So. 2d 47 (Fla. 5th DCA 1991), Ficichy v. State, 578 So. 2d 45 (Fla. 5th DCA 1991), and Adams v. State, 577 So. 2d 963 (Fla. 5th DCA 1991), in which the Fifth District Court of Appeal certified in each case the same question of great public importance which t…
Authorities Cited (12 total)
- Flowers v. State, 567 So. 2d 1055 (Fla. 5th DCA 1990)
- Lewis v. State, 574 So. 2d 245 (Fla. 2d DCA 1991)
- Louie Anthony Sellers v. State, 578 So. 2d 339 (Fla. 1st DCA 1991)
- Fernandez v. Efigenia Nancy Fernandez, 578 So. 2d 339 (Fla. 3d DCA 1991)
- Scott v. State, 574 So. 2d 247 (Fla. 2d DCA 1991)
- FLA. RULES OF CRIM. PROCEDURE RE: SENTENCING GUIDELINES (RULES 3.701 & 3.988), 576 So. 2d 1307 (Fla. 1991)
- Cabrera v. State, 576 So. 2d 1358 (Fla. 3d DCA 1991)
- Worley v. State, 573 So. 2d 1023 (Fla. 2d DCA 1991)
- Znajmiecki v. State, 569 So. 2d 531 (Fla. 5th DCA 1990)
- Adams v. State, 577 So. 2d 963 (Fla. 5th DCA 1991)