SHAWN GEARY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Shawn Geary appealed his convictions for second degree grand theft and leaving the scene of an accident with injury, challenging the sufficiency of evidence, jury instructions, prosecutorial commentary, and sentencing guidelines. The court affirmed the convictions but reversed the sentence due to improper inclusion of victim injury points in the sentencing scoresheet.
The court affirmed the convictions on all grounds, finding the first two issues waived or not fundamental error and the third issue without merit. However, the court reversed the sentence because victim injury points should not have been included in the scoresheet calculation, as the victim's injury was not the direct result of either the grand theft or the leaving the scene charge.
[1] An issue is waived for appellate review if it is not presented to the lower court with the specific legal argument to be raised on appeal.
[2] Failing to instruct the jury on an element of the crime, where there was no dispute regarding that element, is not fundamental error and requires an objection to preserve…
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Join FLexlaw to unlock all legal intelligence“To preserve an issue for appellate review, it 'must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.'”
Establishes the standard for appellate waiver when defendant failed to raise sufficiency of evidence argument at trial
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Join FLexlaw to unlock all legal intelligenceDefendant Geary was convicted of second degree grand theft and leaving the scene of an accident with injury. He had stolen a car three days before bei…
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FULMER, Judge.
The defendant appeals his convictions and sentences for second degree grand theft and leaving the scene of an accident with injury. He raises four issues: (1) the evidence did not establish that the defendant knew a person had been injured when he left the scene of the accident; (2) the trial court did not properly instruct the jury that it must find the defendant knew of the injury; (3) the prosecutor improperly commented on the defendant’s failure to call a witness; and (4) the trial court improperly included points for severe victim injury in the sentencing guidelines scoresheet.
We decline to address the first two issues because the defendant waived appellate review and the errors asserted are not fundamental. At the close of the state’s case, defense counsel moved for a judgment of acquittal as to various charges filed against the defendant. However, with respect to the charge of leaving the scene of an accident with injury, counsel made no argument regarding sufficiency of the evidence. Instead, counsel stated, “Judge, as to Count IV, I don’t have any argument whatsoever. I believe we have admitted that count.” To preserve an issue for appellate review, it “must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation if it is to be considered preserved.” Tillman v. State, 471 So. 2d 32, 35 (Fla.1985).
As to the jury instruction issue, the defendant neither requested that a specific instruction be given nor objected to the instruction that was given. “Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal.” State v. Delva, 575 So. 2d 643, 645 (Fla.1991).
We also decline to address the third issue because we find the defendant’s challenge to the state’s comments to be without merit. Therefore, having determined that the alleged trial errors were either waived or are without merit, we affirm the convictions.
We address the fourth issue because we agree that victim injury points should not have been included in the scoresheet calculation. The defendant argues that there is no nexus between the crimes he was convicted of and the victim’s injury and that the victim’s injury was not severe. We agree with the first argument. The offenses for which the defendant was charged occurred in April of 1994. Section 921.0011(7), Florida Statutes (Supp.1994), in relevant, part, defines victim injury as “the physical injury or death suffered by a person as a direct result of the primary offense, or any offense other than the primary offense, for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense.” Florida Rule of Criminal Procedure 3.702(d)(5) provides that victim injury points are “scored for physical injury or death suffered by a person as a direct result of any offense pending before the court for sentencing.” Thus, the question presented is whether the victim’s injury was a direct result of the defendant’s crimes.
We conclude that the injury was not the direct result of either the grand theft or the leaving the scene of an accident with injury charge. The fact that the defendant stole the ear he was driving three days prior to the auto accident did not cause the accident or the injury resulting therefrom. Likewise, the fact that the defendant left the scene of the accident did not cause the injury. The injury occurred before the defendant committed the crime of leaving the scene of an accident with injury. Had the defendant remained at the scene, the victim would still have been injured. Because we have determined that it was error to include any points for victim injury, we need not consider the defendant’s argument that the injury was improperly classified as severe.
Deletion of the forty points for victim injury reduces the defendant’s total sentence points from 91.8 to 51.8 and eliminates the requirement that the sentence imposed must be a state prison sentence. Therefore, we reverse the sentence and remand for correction of the scoresheet calculation and for resentencing in accordance with this opinion.
Affirmed in part, reversed in part and remanded for resentencing.
DANAHY, A.C.J., and ALTENBERND, J., concur.
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Sims v. State, 998 So. 2d 494 (Fla. 2008)…LEWIS, J. We have for review Sims v. State, 869 So. 2d 45 (Fla. 5th DCA 2004), which expressly and directly conflicts with the decisions in Geary v. State, 675 So. 2d 625 (Fla. 2d DCA 1996), Rodriguez v. State, 684 So. 2d 864 (Fla. 2d DCA 1996), and May v. State, 747 So. 2d 459 (Fla. 4th DCA 1999). We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. We quash the decision under rev…1 / 3
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Sims v. State, 869 So. 2d 45 (Fla. 5th DCA 2004)…of Appeal that he believes stand for the proposition that victim injury points should not be assessed for the crime of which he was convicted. An examination of these cases, Rodriguez v. State, 684 So. 2d 864 (Fla. 2d DCA 1996), and Geary v. State, 675 So. 2d 625 (Fla. 2d DCA), review denied, 680 So. 2d 422 (Fla.1996), however, reflects that our sister court concluded that in those cases there was no causal connection between the crimes and the victim injury. In the present case, however, as we have indicate…1 / 2
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Rodriguez v. State, 684 So. 2d 864 (Fla. 2d DCA 1996)…493 (1967), asserting that he could find no meritorious issues to appeal. We reverse Mr. Rodriguez’s sentence and remand for resentencing. First, the trial court erred in scoring points for the death of the victim in this case. In Geary v. State, 675 So. 2d 625, 626 (Fla. 2d DCA 1996), review denied, No. 88,220, 680 So. 2d 422 (Fla. Aug. 30,1996), which was not decided at the time of Rodriguez’s sentencing or when the public defender filed his Anders brief, we held that it was error to score points for dea…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Tillman v. State, 471 So. 2d 32 (Fla. 1985)
- D'Angelo v. State, 575 So. 2d 643 (Fla. 1991)
- State v. Batraville Vincent Delva, 575 So. 2d 643 (Fla. 1991)