ANDREW HARDEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a capias in effect for failure to pay restitution does not constitute legal constraint for sentencing guidelines purposes.
Appellant was assessed legal constraint points on his scoresheet for a prior offense where he was required to pay restitution but not placed on probat…
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PETERSON, Judge.
Andrew Harden appeals his guidelines sentence, contending that it should be reduced because the trial court erred by assessing legal constraint points on his scoresheet. We quash the sentence and remand for resentencing because Harden was not under “legal constraint” for sentencing guidelines purposes.
Previous to the commission of the instant offenses, Harden was adjudicated guilty of obtaining property by worthless check. The order of disposition on that earlier offense required him to pay restitution and costs within 60 days. Although Harden was required to pay restitution, he was not placed on probation for the worthless check offense. The instant trial court should not have assessed points for legal constraint on the ex post facto basis that Harden should have been placed on probation.
We do note that at the time the instant offenses were committed a capias was in effect for Harden’s failure to make the required payment in the worthless check case. But the existence of the capias is not, in itself, a form of legal constraint. See Pierre v. State, 606 So. 2d 502 (Fla. 5th DCA 1992). Although Harden may have failed to make the required payments, it is not evidence he failed “to appear” in a “proceeding” that was “criminal” and “judicial.” See Fla. R.Crim.P. 3.701(d)(6) (defining legal status at the time of the offense as, inter alia, “fugitives who have fled to avoid prosecution or who have failed to appear for a criminal judicial proceeding ”) (emphasis added).
Accordingly, we quash the sentencing order and remand for resentencing.
SENTENCING ORDER QUASHED; REMANDED.
DAUKSCH and W. SHARP, JJ, concur.
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Harden v. State, 958 So. 2d 1155 (Fla. 5th DCA 2007)…this court reversed Harden’s sentence and remanded for resentencing, determining that the trial court should not have assessed points for legal constraint because he was not under legal constraint for sentencing guidelines purposes. Harden v. State, 655 So. 2d 187 (Fla. 5th DCA 1995). At resentencing, the trial court again imposed an aggregate prison sentence of 27 years. According to Harden, [*1156] the court “achieved this result by going into the permitted range.” Harden appealed his resentencing to this c…
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Chance v. State, 100 So. 3d 1253 (Fla. 5th DCA 2012)…on improper prosecu-torial conduct, defense counsel must object, and if the objection is sustained he must then request a curative instruction or mistrial; he cannot await the outcome of the trial to seek the relief of a new trial.); Jones v. State, 655 So. 2d 187 (Fla. 1st DCA 1995) (“The third issue regarding prosecutorial misconduct during cross-examination of a defense witness and closing argument was not preserved for appellate review and does not constitute fundamental error; therefore, we affirm as to…
Authorities Cited
- Emilienne Pierre v. State, 606 So. 2d 502 (Fla. 5th DCA 1992)