THOMAS GILBERT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Gilbert appeals his sentencing for sexual offenses against his daughter, contending that the trial court applied the wrong sentencing guidelines. The court agrees that the trial court erroneously applied the 1983 guidelines instead of the more favorable 1994 guidelines, and vacates and remands for resentencing.
The trial court erred by applying the 1983 guidelines instead of the 1994 guidelines. Because the date of the offenses could not be determined, the rule of lenity requires that the doubt be resolved in favor of the defendant by applying the more favorable 1994 guidelines, which yielded a permissible range of 23 to 38.5 years. The 120-year sentence was an unsupported upward departure that must be vacated.
[1] When the date of an offense is uncertain and the application of different sentencing guidelines depends on that date, the rule of lenity requires that the defendant be gi…
[2] Sentencing guidelines enacted effective October 1, 1983, apply to felonies committed between that date and January 1, 1994.
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“Because the conclusion that they occurred after that date, which results in the application of the lower, 1994, guidelines, is more favorable to the defendant, the familiar "rule of lenity" requires that he be given the benefit of that doubt.”
Establishes that when offense dates are ambiguous, the rule of lenity favors the defendant by applying the more favorable sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceGilbert was convicted of sexual offenses against his daughter alleged to have occurred on unspecified dates between December 13, 1993 and March 24, 19…
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SCHWARTZ, Chief Judge.
Gilbert appeals from his sentences to four consecutive thirty-year and six concurrent fifteen-year terms for sexual offenses against his daughter, which were alleged and shown to have occurred on unspecified dates between December 13, 1993 and March 24, 1994. The 1994 sentencing guidelines, which apply only to offenses “committed on or after January 1,1994,” § 921.001(4)(b) 2, Fla. Stat. (1995), yielded a permissible range of 23 years to 38.5 years imprisonment.
The trial court, however, sentenced within the “guidelines enacted effective October 1, 1983 [which] apply to all felonies except capítol felonies, committed on or after October 1, 1983, and before January 1, 1994,” § 921.001(4)(b) 1, Fla. Stat. (1995), and which permitted a sentence of 27 years to life.
We agree with the defendant’s contention, and the state’s concession, that this was error. It is admittedly impossible to determine from either the information or the evidence whether the crimes were committed before or after January 1,1994. Because the conclusion that they occurred after that date, which results in the application of the lower, 1994, guidelines, is more favorable to the defendant, the familiar “rule of lenity” requires that he be given the benefit of that doubt. § 775.021(1), Fla. Stat. (1995); see State v. Griffith, 675 So. 2d 911 (Fla.l996)(un-certainty as to the date of offenses resolved in favor of being committed before defendant reached sixteen and thus subject to lesser penalties).
The sentence of 120 years imposed below represented an upward departure from the thus-controlling 1994 guidelines range, which was not supported by any contemporaneous written reasons and must therefore be vacated. Pope v. State, 561 So. 2d 554 (Fla.1990). Since, however, the sentence was within the guidelines the trial court erroneously applied, it should be granted the opportunity, after remand, to enter a departure sentence appropriately supported by written reasons. See State v. Betancourt, 552 So. 2d 1107 (Fla.1989); Henderson v. State, 577 So. 2d 653 (Fla. 1st DCA 1991), review denied, 589 So. 2d 291 (Fla.1991); State v. Hughes, 677 So. 2d 852 (Fla. 1st DCA 1995). If it does not do so, it must resentence Gilbert within the 1994 permitted range.
Vacated and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Cairl v. State, 833 So. 2d 312 (Fla. 2d DCA 2003)…ould be sentenced under the more lenient version of the guidelines. See Schloesser v. State, 697 So. 2d 942 (Fla. 2d DCA 1997); Duer v. Moore, 765 So. 2d 743 (Fla. 1st DCA 2000); Maitre v. State, 770 So. 2d 309 (Fla. 4th DCA 2000); Gilbert v. State, 680 So. 2d 1132 (Fla. 3d DCA 1996). Each of these cases cites State v. Griffith, 675 So. 2d 911 (Fla.1996), as authority for applying the rule of lenity. In Griffith, the defendant was charged with committing offenses that spanned the period of time when the defen…
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Schloesser v. State, 697 So. 2d 942 (Fla. 2d DCA 1997)…the defendant’s sentencing guidelines scoresheet. See, e.g., Lewis v. State, 574 So. 2d 245 (Fla. 2d DCA 1991) (applying rules of lenity and strict construction to resolve ambiguity in sentencing guidelines in favor of defendant); Gilbert v. State, 680 So. 2d 1132 (Fla. 3d DCA 1996) (holding rule of lenity required applying guidelines that resulted in lesser sentence where neither information nor evidence established that crimes were committed after effective date of statute providing lesser sentencing range)…
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Duer v. Moore, 765 So. 2d 743 (Fla. 1st DCA 2000)…ly as few as two per count, but fails to specify precisely when over a period exceeding ten months the offenses took place. No evidence established the dates on which the offenses actually occurred. The present case thus resembles Gilbert v. State, 680 So. 2d 1132 (Fla. 3d DCA 1996), where offenses were alleged to have occurred on unspecified dates between December 13,1993, and March 24,1994. Until January 1, 1994, the guidelines permitted a sentence of up to life imprisonment for the offenses alleged, while…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- State v. Betancourt, 552 So. 2d 1107 (Fla. 1989)
- State v. Griffith, 675 So. 2d 911 (Fla. 1996)
- Henderson v. State, 577 So. 2d 653 (Fla. 1st DCA 1991)
- State v. Hughes, 677 So. 2d 852 (Fla. 1st DCA 1995)