MICHAEL THORNTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Thornton appealed his conviction for fleeing or attempting to elude a law enforcement officer and aggravated assault on a law enforcement officer. The court affirmed his conviction and the trial court's denial of his motion to withdraw his guilty plea, but vacated and remanded for resentencing because the trial court improperly applied a law enforcement multiplier to his sentence.
The court affirmed the trial court's denial of the motion to withdraw the plea, but held that the trial court improperly applied the law enforcement multiplier because appellant was not charged with any offense under sections 775.087, 775.0823, or 893.135—the only offenses eligible for such enhancement under rule 3.702(d)(14).
[1] A trial court may deny a motion to withdraw a nolo contendere plea made at sentencing.
[2] A law enforcement multiplier in calculating a sentencing scoresheet is only applicable to specific enumerated offenses.
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Join FLexlaw to unlock all legal intelligence“If the primary offense is drug trafficking under section 893.135, the subtotal sentence points may be multiplied, at the discretion of the sentencing court, by a factor of 1.5. If the primary offense is a violation of the Law Enforcement Protection Act under subsections 775.0823(2), (3), (4), or (5), the subtotal sentence points shall be multiplied by a factor of 2.”
Rule 3.702(d)(14) sets forth the specific offenses that qualify for law enforcement multipliers in sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceAppellant Michael Thornton pleaded nolo contendere to charges of fleeing or attempting to elude a law enforcement officer in violation of section 316.…
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SHAHOOD, Judge.
Appellant, Michael Thornton, appeals from a judgment of conviction, and sentence on the charges of fleeing or attempting to elude a law enforcement officer, in violation of section 316.1935, Florida Statutes, and aggravated assault on a law enforcement officer, in violation of sections 784.021 and 784.07, Florida Statutes.
After pleading nolo contendere to the above charges, appellant moved to withdraw his plea at sentencing, which the trial court denied. We affirm the trial court’s denial of appellant’s motion to withdraw his plea, but remand for resentencing based on the second issue raised by appellant in this appeal.
The trial court in sentencing appellant, used a law enforcement multiplier in computing appellant’s scoresheet. The authority for using a law enforcement multiplier is found in rule 3.702(d)(14), Florida Rules of Criminal Procedure (1995), which provides as follows:
If the primary offense is drug trafficking under section 893.135, the subtotal sentence points may be multiplied, at the discretion of the sentencing court, by a factor of 1.5. If the primary offense is a violation of the Law Enforcement Protection Act under subsections 775.0823(2), (3), (4), or (5), the subtotal sentence points shall be multiplied by a factor of 2. If the primary offense is a violation of subsection 775.087(2)(a)(2) or subsections 775.0823(6) or (7), the subtotal sentence points shall be multiplied by a factor of 1.5. If both enhancements are applicable, only the enhancement with the higher multiplier is to be used.
Appellant was not charged with any violation under section 775.087 or 775.0823, nor was he charged under 893.135; therefore, he could not have been sentenced using a law enforcement multiplier. The charges against appellant, as contained in the Information, were based on sections 784.07 and 784.021, and do not fit within the enhancement section of rule 3.702(d)(14). We therefore vacate appellant’s sentence and remand with directions to correct the guidelines scoresheet and to resentence appellant accordingly.
Affirmed; remanded for resentencing with directions.
KLEIN and STEVENSON, JJ., concur.
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Jordan v. State, 728 So. 2d 748 (Fla. 3d DCA 1998)…rmation did not charge him with a violation of section 775.0823, Florida Statutes. Defendant argues that since section 775.0823 was not cited in the information, it follows that the law enforcement multiplier must be stricken. See Thornton v. State, 679 So. 2d 871, 871 (Fla. 4th DCA 1996).1 The charging document alleged that defendant committed attempted first-degree murder of a law enforcement officer, with a firearm, “in violation of § 782.04(1) and § 784.07 and § 775.0825 and § 777.04, [Florida Statutes].…1 / 2
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Jayson Watson v. State, 749 So. 2d 556 (Fla. 2d DCA 2000)…Law Enforcement Protection Act, section 775.0823, Florida Statutes (1997). When the information fails to charge the defendant with a violation of section 775.0823, the defendant cannot be sentenced pursuant to its provisions. See Thornton v. State, 679 So. 2d 871 (Fla. 4th DCA 1996). Therefore, upon remand, Watson’s sentencing scoresheet must be calculated without applying the law enforcement multiplier. Reversed and remanded for resentenc-ing. PARKER, A.C.J., and WHATLEY and STRINGER, JJ., Concur.…
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Price v. State, 762 So. 2d 1035 (Fla. 4th DCA 2000)…a violation of the Law Enforcement Protection Act, section 775.0823, Florida Statutes (1995). Thus, as the state properly concedes, the 1.5 law enforcement protection multiplier was erroneously applied to appellant’s sentence. See Thornton v. State, 679 So. 2d 871 (Fla. 4th DCA 1996).1 Additionally, appellant’s sentence must be remanded for reconsideration in accordance with Heggs v. State, 759 So. 2d 620 (Fla.2000) (holding that defendant entitled to resentencing if the sentence imposed under the unconstitu…
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