MICHAEL JONES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Jones appealed the summary denial of his motion to correct sentence, challenging the addition of 160 scoresheet points for victim injury in his life sentence for burglary and sexual battery. The court reversed and remanded, finding the trial court improperly applied retroactive amendments to sentencing guidelines rules and failed to properly consider whether scoring errors were harmless.
The court reversed and remanded, holding that the trial court erred by relying on the 1988 permitted ranges amendment without considering the ex post facto problem. The court also held that if the trial court relied on the 1991 rule amendment to quadruple victim injury points for a single criminal episode and single victim, this would constitute improper retroactive application. On remand, the trial court must first determine whether any errors are harmless, and if not, must conduct an evidentiary hearing to determine whether victim injury was properly scored.
[1] Ex post facto application of amended sentencing rules to offenses committed before the amendment's adoption is impermissible.
[2] Retroactive application of sentencing guideline amendments can be raised via a motion to correct sentence.
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Join FLexlaw to unlock all legal intelligence“Permitted ranges were incorporated into the sentencing guidelines rule "to expand the discretion of the sentencing courts."”
Explains the purpose of the 1988 rule amendment, but shows why its ex post facto application to Jones's 1986 offenses was improper
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Join FLexlaw to unlock all legal intelligenceJones is serving a life sentence for burglary and four counts of sexual battery. The sentence was consistent with guideline recommendations at the tim…
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PER CURIAM.
Michael Jones appeals the summary denial of his motion to correct sentence. We reverse.
Jones is serving a life sentence for burglary and four counts of sexual battery. The sentence is consistent with the guideline recommendation. However, Jones now questions the addition of 160 scoresheet points for “victim injury.” According to Jones, correction of the asserted errors would reduce the recommended sentence to a maximum of 40 years.
In response to Jones’s motion the trial court found that the sentencing judge “was well aware of defendant’s criminal history” and would have imposed a life sentence anyway under the “permitted range.” See Fla.R.Crim.P. 3.701(d)(8). Permitted ranges were incorporated into the sentencing guidelines rule “to expand the discretion of the sentencing courts.” Florida Rules of Criminal Procedure Re: Sentencing Guidelines (Rules 3.701 and 3.988), 522 So. 2d 374, 375 (Fla.1988).
However, this rule revision was not adopted until 1988, whereas Jones’s offenses took place in 1986. Ex post facto application of the amended rule to Jones’s convictions would be impermissible. Strickland v. State, 596 So. 2d 1155 (Fla. 2d DCA), rev. denied, 602 So. 2d 942 (Fla.1992).
Accordingly we decline to affirm the trial court on this basis, and turn to the merits of Jones’s motion.
Although it is not clearly worded, we interpret Jones’s first argument as contesting retroactive application of a 1991 amendment to rule 3.701(d)(7).
From the limited record before us it appears this case involved a single victim but multiple incidents of sexual battery, and further that the 160 “victim injury points” represent 40 points for “penetration or slight injury” quadrupled because of the four separate convictions. “Victim injury shall be scored for each victim physically injured during a criminal episode or transaction, and for each count resulting in injury whether there are one or more victims.” Fla.R.Crim.P. 3.701(d)(7).
This has been the approved method for scoring victim injury only since 1991. See Florida Rules of Criminal Procedure Re: Sentencing Guidelines (Rules 3.701 and 3.988), 576 So. 2d 1307 (Fla.1991).
Prior versions of the rule allowed the scoring of “victim injury” points only for each victim physically injured during a criminal episode. If in fact the trial court relied on the 1991 rule, and Jones’s multiple convictions stemmed from a “single episode,” the quadrupling of “victim injury” points was improper. Madrey v. State, 594 So. 2d 841 (Fla. 5th DCA1992).1
Jones also questions the propriety of scoring victim injury under any circumstances. This portion of the motion is based on the supreme court’s recent decision Karchesky v. State, 591 So. 2d 930 (Fla.1992). Our court has considered the effect of Karchesky and concluded that while the issue may be raised via rule 3.800(a), the trial court may still consider the extent of victim injury at resentencing. Morris v. State, 605 So. 2d 511 (Fla. 2d DCA1992).
Because the guideline scoresheet does not appear in the record on appeal, this court has only Jones’s word that deletion of all points for “victim injury” would result in a reduced sentence.
Therefore, after remand, the trial court should first determine whether the errors asserted, even if true, are harmless. Cf. Marshall v. State, 560 So. 2d 810 (Fla. 2d DCA1990). If so the court may again deny the motion, attaching to its order the documents upon which it has relied. Otherwise the court should proceed to determine whether “victim injury” was properly scored. Because the issue discussed in Karchesky and Morris requires additional findings of fact, and because the “single episode” problem may require further evidentiary development, de novo resentencing may be necessary. Any party aggrieved by the subsequent action of the trial court must file a timely notice to obtain further appellate review.
Reversed.
CAMPBELL, A.C.J., and SCHOONOVER and HALL, JJ., concur. . This issue was not raised on direct appeal and there may have been no objection at sentencing. However, this court has held that improper retroactive application of changes in the sentencing guidelines may be addressed via Florida Rule of Criminal Procedure 3.800(a). Miller v. State, 515 So. 2d 392 (Fla. 2d DCA1987); Dupont v. State, 514 So. 2d 1159 (Fla. 2d DCA1987).
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Royce Glenn Harper v. State, 632 So. 2d 104 (Fla. 1st DCA 1994)…i v. State, [*105] 620 So. 2d 1303 (Fla. 2d DCA 1993); Harrelson v. State, 616 So. 2d 128 (Fla. 2d DCA), review denied, 624 So. 2d 268 (Fla.1993); Roux v. State, 615 So. 2d 879 (Fla. 2d DCA), review denied, 624 So. 2d 268 (Fla.1993); Jones v. State, 615 So. 2d 705 (Fla. 2d DCA 1992); Lane v. State, 613 So. 2d 932 (Fla. 2d DCA 1993); Morales v. State, 613 So. 2d 922 (Fla. 3d DCA), revieiv denied, 623 So. 2d 494 (Fla.1993); Boland v. State 613 So. 2d 72 (Fla. 4th DCA), review denied, 624 So. 2d 268 (Fla.1993);…
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Fulkroad v. State, 640 So. 2d 1160 (Fla. 2d DCA 1994)…n evidentiary hearing, it determines that actual physical injury, wholly apart from penetration, occurred. If, on the other hand, no physical injury is proved, the scoresheet must be corrected and Fulkroad resentenced. See Harrelson; Jones v. State, 615 So. 2d 705 (Fla. 2d DCA 1992). Reversed and remanded. PATTERSON and FULMER, JJ., concur. . Chapter 92-135, § 1, Laws of Florida, establishes, for purposes of the statewide sentencing guidelines, that "if the conviction is for an offense described in chapter…
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Najar v. State, 614 So. 2d 644 (Fla. 2d DCA 1993)…ver, Najar committed these offenses on April 23, 1991, prior to the effective date of the revision. Because substantive changes in the law are to be prospectively applied, the amendment has no application to the matter before us. See Jones v. State, 615 So. 2d 705 (Fla. 2d DCA 1992); Fretwell v. State, 586 So. 2d 483 (Fla. 5th DCA 1991) (declining to apply the revision to rule 3.701 retroactively). We take the supreme court’s language in State v. Johnson, 616 So. 2d 1 (Fla.1993), that resentenc-ing was to occ…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Cauthen v. State, 522 So. 2d 374 (Fla. 1988)
- Silas v. Morris, 605 So. 2d 511 (Fla. 2d DCA 1992)
- FLA. RULES OF CRIM. PROCEDURE RE: SENTENCING GUIDELINES (RULES 3.701 & 3.988), 576 So. 2d 1307 (Fla. 1991)
- Dupont v. State, 514 So. 2d 1159 (Fla. 2d DCA 1987)
- Strickland v. State, 596 So. 2d 1155 (Fla. 2d DCA 1992)
- Madrey v. State, 594 So. 2d 841 (Fla. 5th DCA 1992)
- Ford v. State, 515 So. 2d 392 (Fla. 2d DCA 1987)
- Theo Miller v. State, 515 So. 2d 392 (Fla. 2d DCA 1987)
- Marshall v. State, 560 So. 2d 810 (Fla. 2d DCA 1990)