HOWARD ORR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIUM.
AFFIRMED.
GOSHORN, C.J., and W. SHARP and GRIFFIN, JJ., concur.
W. SHARP, Judge.
We grant appellant’s motion for rehearing for the purpose of noting conflict with the Fourth District Court of Appeal. Appellant was convicted of attempted first degree murder with a firearm and two other offenses. The attempted first degree murder was the primary offense on the sentencing guideline scoresheet. A category one scoresheet was prepared, which reflected a recommended range of 17-22 years. Appellant was sentenced to 17 years incarceration for the attempted first degree murder, with a three year mandatory minimum term.
Florida Rule of Criminal Procedure 3.988(a) states that homicide offenses under Chapter 782 should be scored as primary offenses under category one “except subsection 782.04(l)(a) — capital murder.” Appellant argues that attempted first degree murder is a crime under section 782.-04(l)(a) and section 777.04, Florida Statutes (1991), and should likewise be excluded from category one.
In Tarawneh v. State, 588 So. 2d 1006 (Fla. 4th DCA 1991), Tarawneh was convicted of four inchoate offenses, solicitation to commit first degree murder and three counts of conspiracy to commit first degree murder. The fourth district noted that Florida Rule of Criminal Procedure 3.701(c) (Committee Note) states that inchoate offenses are included within the category of the “offense attempted, solicited, or conspired to, as modified by Chapter 777 ...” The fourth district held that since category one expressly excludes capital murder, the only remaining category that could be applicable for the related inchoate offenses is category nine, which is designated for “all other felony offenses.”
We agree with the opinion in Hayles v. State, 596 So. 2d 1236 (Fla. 1st DCA 1992), which rejects the analysis in Tarawneh. First degree murder is excluded from category one because the guidelines do not apply to capital felonies. See Fla.R.Crim.P. 3.701(c) (Committee Note). Since first degree murder cannot be scored as a primary offense under the guidelines, does that exclude the related inchoate offenses from the guidelines as well? We think not, since the inchoate offenses are not capital felonies. Attempted first degree murder is a felony of the first degree, and in this case was enhanced to a life felony since appellant made the attempt with a firearm. See §§ 775.087(l)(a) and 777.04(4)(a), Fla.Stat. (1991). The category one scoresheet applicable to non-capital murders and attempted murders should be used when attempted first degree murder is scored as the primary offense. The trial court correctly used the category one scoresheet in determining appellant’s presumptive sentencing range.
AFFIRMED.
GOSHORN, C.J., and GRIFFIN, J„ concur.
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Leider v. State, 605 So. 2d 177 (Fla. 2d DCA 1992)…ation to commit first degree murder. He was sentenced under guidelines “category one,” a relatively harsh offense category reserved for homicides. We agree with the holdings in Roth v. State, 601 So. 2d 613 (Fla. 3d DCA June 23, 1992), Orr v. State, 597 So. 2d 833 (Fla. 5th DCA 1992), and Hayles v. State, 596 So. 2d 1236 (Fla. 1st DCA 1992), and therefore hold that Leider’s scoresheet was correctly prepared. In so doing we certify conflict with Tarawneh v. State, 588 So. 2d 1006 (Fla. 4th DCA 1991). Affirme…
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McMILLIAN v. State, 609 So. 2d 721 (Fla. 5th DCA 1992)…, What Constitutes Attempted Murder, 54 A.L.R.3d 612. We also hold the trial court properly used a category one guidelines scoresheet. Hayles v. State, 596 So. 2d 1236 (Fla. 1st DCA1992), approved, 608 So. 2d 13 (Fla. 1992); see also Orr v. State, 597 So. 2d 833, 834 (Fla. 5th DCA 1992), rev. granted, 602 So. 2d 942 (Fla.1992). AFFIRMED. COBB and DIAMANTIS, JJ., concur.…
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McAFFEE v. State, 208 So. 3d 747 (Fla. 2d DCA 2016)…(Fla.2000); Deason v. Fla. Dep’t of Corr., 705 So. 2d 1374 (Fla.1998); Hayles v. State, 608 So. 2d 13 (Fla.1992); Whatley v. State, 640 So. 2d 1201 (Fla. 2d DCA 1994); Lincoln v. Fla. Parole Comm’n, 643 So. 2d 668 (Fla. 1st DCA 1994); Orr v. State, 597 So. 2d 833 (Fla. 5th DCA 1992). KHOUZAM, SLEET, and LUCAS, JJ., Concur.…
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- Saud Tarawneh v. State, 588 So. 2d 1006 (Fla. 4th DCA 1991)
- Hayles v. State, 596 So. 2d 1236 (Fla. 1st DCA 1992)