RODNEY ALTON BUSH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the sentence must be vacated and remanded for resentencing due to errors in the scoresheet, specifically regarding firearm use and legal status violations.
The appellant was convicted of attempted second-degree murder. The scoresheet used for sentencing improperly included points for firearm use and a leg…
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PER CURIAM.
The appellant challenges his conviction and sentence for a February 6, 1995, attempted second-degree murder. We affirm the conviction, but we vacate the sentence and remand for resentencing because of two score-sheet errors. We also direct the trial court to correct errors in the judgment.
The appellant’s scoresheet should not have included an additional eighteen points for using a firearm because attempted second-degree murder is an enumerated crime under section 775.087(2)(a), Florida Statutes (1995). See Fla. R.Crim. P. 3.702(d)(12); Palmer v. State, 667 So. 2d 1018 (Fla. 5th DCA 1996).
The appellant’s scoresheet also should not have included four points for a legal status violation. Florida Rule of Criminal Procedure 3.702 provides that a legal status violation occurs when a defendant commits an offense while under any of the forms of legal status listed in Florida Statute 921.0011(3). Although the appellant’s legal status points were scored because he was in a pretrial intervention program at the time of his offense, the section 921.0011(3), Florida Statutes (1994 Supp.), list does not include pretrial intervention programs. Legal status points were therefore improperly assessed against the appellant. See Chestang v. State, 679 So. 2d 873 (Fla. 1st DCA 1996).
On remand, the trial court is directed to correct errors in the judgment. The judgment should be corrected to reflect that the appellant was convicted of attempted second-degree murder with a firearm, a first-degree felony, and that sections 775.087 and 777.04 are applicable statutes.
The conviction is affirmed, the sentence is vacated, and the case is remanded for resentencing and for correction of the judgment.
ALLEN, MICKLE and PADOVANO, JJ„ concur.
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Neal v. State, 695 So. 2d 496 (Fla. 1st DCA 1997)…crimes enumerated in section 775.087(2), Florida Statutes (1995). Florida Rule of Criminal Procedure 3.702(d)(12) directs that points for use of a firearm shall not be added for those crimes enumerated in section 775.087(2). See also Bush v. State, 687 So. 2d 312 (Fla. 1st DCA 1997) (holding that the defendant’s sentencing scoresheet could not include eighteen points for using a firearm because defendant’s crime was an enumerated crime under section 775.087(2), Florida Statutes (1995)). The judge at sentenci…
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Goings v. State, 990 So. 2d 1228 (Fla. 1st DCA 2008)…sed.” Among the enumerated felonies in section 775.087(2)(a), is the offense of “murder.” In the instant case, the appellant was convicted of second-degree murder. Therefore, the trial court erred in imposing the firearm points. See Bush v. State, 687 So. 2d 312, 312 (Fla. 1st DCA 1997). The state concedes that 18 points were erroneously assessed. Furthermore, a corrected scoresheet only allows up to 21.6 years’ imprisonment. Because the appellant’s 23.5-year sentence could not have been imposed absent a de…
Authorities Cited
- Palmer v. State, 667 So. 2d 1018 (Fla. 5th DCA 1996)
- Chestang v. State, 679 So. 2d 873 (Fla. 1st DCA 1996)