JAMES O. BENDEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed and remanded for resentencing because the trial judge improperly applied a multiplier to legal restraint points in calculating the sentencing guidelines score, contrary to the Florida Supreme Court's disapproval of such multipliers in Flowers v. State.
A trial court's use of a multiplier for legal restraint points in calculating sentencing guidelines scores is improper and requires resentencing even if the error might be harmless.
[1] A multiplier applied to legal restraint points in sentencing guidelines calculations is improper following the Florida Supreme Court's disapproval in Flowers v. …
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Join FLexlaw to unlock all legal intelligence“it cannot be assumed here that the change in score might not impact the exercise of the court's discretion”
Court's reasoning for why the error cannot be treated as harmless and requires resentencing
Bendel was being sentenced for attempted sexual battery and simple battery, each also constituting a violation of probation. The trial judge applied a…
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FARMER, Judge.
In number 91-2177, appellant was being sentenced for the separate offénses of attempted sexual battery and simple battery, each of which was also a violation of probation imposed in an earlier case. At the sentencing, the trial judge relied on our decision in Carter v. State, 571 So. 2d 520 (Fla. 4th DCA 1990), and multiplied legal constraint points by a multiplier of two (one for each of the substantive offenses for which he was being sentenced). Unfortunately, the use of a multiplier for legal restraint points, and consequently our Carter decision,1 was disapproved by the supreme court in Flowers v. State, 586 So. 2d 1058 (Fla.1991).
The state argues that recalculating the guidelines score after removing the multiplier may not change the result, and thus we should affirm as harmless error. In Cochran v. State, 592 So. 2d 784 (Fla, 4th DCA 1992), however, we rejected the same argument in identical circumstances. We thus reverse and remand for resentencing, because “it cannot be assumed here that the change in score might not impact the exercise of the court’s discretion.” 592 So. 2d at 784.
We also reverse the sentence in number 91-2178 so that it may be corrected, as the state has conceded, to show the correct charge to which defendant actually pleaded.
REVERSED AND REMANDED WITH DIRECTIONS.
WARNER, J„ and DIMITROULEAS, WILLIAM P., Associate Judge, concur. . See Carter v. State, 586 So. 2d 340 (Fla.1991).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Flowers v. State, 586 So. 2d 1058 (Fla. 1991)
- Carter v. State, 586 So. 2d 340 (Fla. 1991)
- Fla. Perfections, Inc. v. J & D Fin. Corp., 571 So. 2d 520 (Fla. 3d DCA 1990)
- Carter v. State, 571 So. 2d 520 (Fla. 4th DCA 1990)
- Cochran v. State, 592 So. 2d 784 (Fla. 4th DCA 1992)