GLEN JENKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Glen Jenkins appeals his 50-month prison sentence for aggravated child abuse, arguing the primary offense was incorrectly scored under Florida's sentencing guidelines. The court agrees with the state's concession of error and vacates the sentence for resentencing using the correct offense level.
The primary offense was incorrectly scored. Because the specific subsection under which Jenkins was charged was not listed in section 921.0012, it should have been scored under section 921.0013 at level 4 (22 points) for a second-degree felony, rather than level 8 (74 points). Regarding jail time credit, the court cannot award credit without documentation of the actual time served.
[1] Felony offenses not specifically listed in section 921.0012 are to be assigned a severity level as described in section 921.0013.
[2] A crime must be specifically listed in section 921.0012 to be scored under that section; otherwise, it must be scored under section 921.0013.
Previewing 2 of 4 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“Aggravated battery on a child, as set forth in subsection 827.03(l)(a), is the only subsection relating to the crime of aggravated child abuse specifically listed in section 921.0012.”
Establishes that the specific charging subsection was not included in the sentencing guidelines' offense list, requiring application of the default scoring rule.
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Join FLexlaw to unlock all legal intelligenceJenkins was charged with aggravated battery on a child under Florida Statute sections 827.08(1)(b), (1)(c), and (1)(d), rather than subsection (1)(a).…
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PARIENTE, Judge.
Defendant appeals his sentence of 50 months in prison contending that the primary offense of aggravated child abuse was incorrectly scored. The state concedes error and we agree that the primary offense was improperly scored on defendant’s scoresheet.
Florida Rule of Criminal Procedure 3.702, entitled “Sentencing Guidelines (1994),” was enacted to implement the 1994 revised sentencing guidelines and applies to the sentencing here. See Amendments to Fla.R.Crim. P., 628 So. 2d 1084, 1089 (Fla.1993). In accordance with rule 3.702, “[flelony offenses not listed in section 921.0012 are to be assigned a severity level as described in section 921.0013.” Id. See also § 921.0013, Fla. Stat. (1993); § 921.0012, Fla.Stat. (Supp. 1994). Defendant was charged with aggravated battery on a child pursuant to subsections 827.08(l)(b), (l)(c) and (l)(d) and not pursuant to subsection (l)(a). Aggravated battery on a child, as set forth in subsection 827.03(l)(a), is the only subsection relating to the crime of aggravated child abuse specifically listed in section 921.0012.
Because defendant’s crime was not specifically listed in section 921.0012, the severity level for his crime should have been scored pursuant to section 921.0013. Further, because aggravated child abuse is a second degree felony, see section 827.03(2), Florida Statutes, his primary offense should have been scored within offense level 4, pursuant to section 921.0013(2), and not within offense level 8. The effect of this scoring error on defendant’s total points and guidelines sentence is significant because a level 4 offense is assigned 22 points whereas a level 8 offense is assigned 74 points. See § 921.0014, Fla.Stat. (1993).
Defendant additionally contends that his sentence does not reflect appropriate credit for time served in jail prior to resentencing. Failure to give appropriate credit for jail time served may be raised on direct appeal, even in the absence of an objection. Kio v. State, 624 So. 2d 744 (Fla. 1st DCA 1993), review denied, 634 So. 2d 627 (Fla. 1994), and cases cited therein. However, beyond defense counsel’s assertion that defendant “has been continually incarcerated” since the date of his arrest, the record is devoid of any evidence pertaining to the amount of time defendant actually served in jail.
Accordingly we vacate defendant’s sentence and remand for resentencing pursuant to a corrected guidelines scoresheet. If, upon remand, defendant is able to document his assertion that he was continually incarcerated from his arrest to his sentencing, the trial court may of course consider this fact at the time of resentencing.
GLICKSTEIN and FARMER, JJ., concur.
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Ducharme v. State, 690 So. 2d 1358 (Fla. 2d DCA 1997)…21.0014(1). Any violation of the statute based on subsections (b), (c), or (d) would require a level 4 ranking mandating the assessment of 22 points consistent with a felony of the second degree. See §§ 921.0013(2) and 921.0014(1); Jenkins v. State, 661 So. 2d 411, 412 (Fla. 4th DCA 1995); accord Newberry v. State, 677 So. 2d 884 (Fla. 5th DCA 1996); see also Fla.R. of Crim.P. 3.702(c) (“Felony offenses not listed in section 921.0012 are to be assigned a severity level as described in section 921.0013”). In…
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Ladawn Gibson v. State, 691 So. 2d 544 (Fla. 2d DCA 1997)…for this crime should have been assigned pursuant to section 921.0013. This offense should have been assigned a severity ranking of level four pursuant to section 921.0013(2). Newberry v. State, 677 So. 2d 884 (Fla. 5th DCA 1996); Jenkins v. State, 661 So. 2d 411 (Fla. 4th DCA 1995). The effect of this error resulted in assessing seventy-four points instead of twenty-two points on appellant’s scoresheet. We, accordingly, affirm the order revoking the appellant’s community control, vacate the sentence, and r…
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Turane Rouse v. State, 720 So. 2d 584 (Fla. 4th DCA 1998)…sified aggravated child abuse as a second degree felony, leading to the conclusion that the legislature intended to place all violations of that statute into the level 8 category, no matter what conduct comprised the criminal act. Jenkins v. State, 661 So. 2d 411 (Fla. 4th DCA 1995), relied upon by appellant, is distinguishable. While Jenkins did involve the proper scoring of aggravated child abuse under the sentencing guidelines, the applicable statute was the 1994 version of section 921.0012. That statute…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Amendments to Florida Rules of Criminal Procedure re Sentencing Guidelines, 628 So. 2d 1084 (Fla. 1993)
- KIO v. State, 624 So. 2d 744 (Fla. 1st DCA 1993)