EDDIE MOORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eddie Moore appealed his sentence after remand, challenging the classification of one felony and the credit for time served. The court reversed and remanded on the felony classification issue but affirmed the upward departure from sentencing guidelines based on Moore's escalating pattern of criminal activity.
The court held that the trial court failed to correct the felony classification as required by the prior mandate and therefore reversed and remanded for correction. The court affirmed that Moore was properly credited with 824 days and credit for time awaiting transport to F.S.P. The court affirmed the upward departure from sentencing guidelines, finding Moore's escalating pattern of criminal activity was a valid grounds for departure.
[1] A trial court must correct a judgment of conviction and sentence to reflect the proper felony degree as mandated by an appellate court's prior ruling.
[2] A defendant need not be present for the correction of a sentence to reflect the proper felony degree.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“in accordance with this court's prior mandate in Moore v. State, 616 So.2d 168 (Fla. 4th DCA 1993), the trial court failed to correct Moore's judgment of conviction and sentence to reflect that aggravated battery with a firearm was a second degree rather than a first degree felony”
Establishes the grounds for reversal and remand regarding the felony classification error
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Join FLexlaw to unlock all legal intelligenceMoore was convicted of crimes including aggravated battery with a firearm and second degree murder. The trial court initially classified the aggravate…
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PER CURIAM.
Appellant, Eddie Moore appeals his sentence after remand, raising three points on appeal. First, Moore contends and .the state concedes, that in accordance with this court’s prior mandate in Moore v. State, 616 So. 2d 168 (Fla. 4th DCA 1993), the trial court failed to correct Moore’s judgment of conviction and sentence to reflect that aggravated battery with a firearm was a second degree rather than a first degree felony. Thus, we reverse and remand for the correction of this sentence. Moore need not be present for this correction to take place.
Moore also contends that the trial court failed to credit him on his resentence for all the time previously served. However, it appears that the lower court properly credited Moore for such time when it gave him credit for 824 days, and “credit for all time previously served while awaiting to be transported to F.S.P.” While section 921.161, Florida Statutes (1991), requires that credit must be provided for a specified period of time provided for in the sentence, the department of corrections can properly calculate the specific amount of days Moore spent in jail while waiting to be transported. See Hampton v. State, 421 So. 2d 775 (Fla. 5th DCA 1982) (though defendant is entitled to credit against the first of these two sentences for the time he spent in prison under the first of his two old sentences on the same charge and conviction, it is the proper function of the department of corrections to determine the appropriate amount of credit for such prison time).
Finally, Moore contends that the lower court erred in departing from the guideline sentence on the second degree murder charge. We hold that Moore’s “escalating pattern of criminal activity” was a valid ground for an upward departure from the sentencing guidelines, since Moore’s crimes have become increasingly violent as evidenced by his use of a firearm, and warranted an increased sentence. Barfield v. State, 594 So. 2d 259, 261 (Fla.1992). Thus, we affirm Moore’s sentence on this count since in accordance with section 921.001, Florida Statues (1991), if one of 'the reasons for departure is valid, the departure sentence should be affirmed.
AFFIRM IN PART, REVERSE IN PART.
HERSEY, POLEN and STEVENSON, JJ., concur.
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Edmond L. Goodman v. State, 683 So. 2d 173 (Fla. 4th DCA 1996)…reviously reversed appellant’s sentence; however, on resentencing the trial court failed to award him credit for prison time served or gain time between sentencing and resentencing. We agree that the court was required to do so under Moore v. State, 634 So. 2d 214 (Fla. 4th DCA 1994), and therefore reverse. KLEIN and GROSS, JJ., and GERSTEN, CAROL R., Associate Judge, concur.…
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Kaufman v. State, 696 So. 2d 1214 (Fla. 4th DCA 1997)…rt a departure from a guidelines sentence, the departure shall be upheld when at least one circumstance or factor justifies the departure regardless of the presence of other circumstances or factors found not to justify departure.”); Moore v. State, 634 So. 2d 214, 215 (Fla. 4th DCA 1994)(“If one of the reasons for departure is valid, the departure sentence should be affirmed.”). On more than one occasion the Florida Supreme Court has held that a defendant’s [*1215] conviction of an unscoreable capital felo…
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Holland v. State, 758 So. 2d 1156 (Fla. 4th DCA 2000)…PER CURIAM. Affirmed. See Moore v. State, 634 So. 2d 214 (Fla. 4th DCA 1994). KLEIN, GROSS and TAYLOR, JJ, concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tobias Barfield v. State, 594 So. 2d 259 (Fla. 1992)
- Moore v. State, 616 So. 2d 168 (Fla. 4th DCA 1993)
- Hampton v. State, 421 So. 2d 775 (Fla. 5th DCA 1982)