LADAWN GIBSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ladawn Gibson appealed her revocation of community control and resulting prison sentence for violating the terms of her community control (imposed after a guilty plea to aggravated child abuse). The court affirmed the revocation but found a sentencing guidelines error and remanded for resentencing with a corrected scoresheet.
The court affirmed the revocation of community control but found that the trial court erred in applying the guidelines scoresheet by classifying the offense as level eight instead of level four, resulting in an overassessment of seventy-four points instead of twenty-two points.
[1] A trial court's order revoking community control will be affirmed if the appellant's contentions regarding the violation lack merit.
[2] A sentencing error occurs when a felony offense not specifically listed in section 921.0012, Florida Statutes (1993), is assigned a severity level under that section rath…
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Join FLexlaw to unlock all legal intelligence“Appellant was charged with aggravated battery on a child in violation of section 827.03(l)(b) and not pursuant to section 827.03(l)(a). Aggravated battery on a child as defined in section 827.03(l)(a) is the only form of aggravated child abuse specifically listed in the 1993 version of section 921.0012.”
Establishes that only one specific form of aggravated child abuse was listed in the guidelines, and Gibson's charge fell outside that specific listing.
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Join FLexlaw to unlock all legal intelligenceGibson pleaded guilty to aggravated child abuse under section 827.03(1)(b), Florida Statutes, and was sentenced to one year of community control follo…
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SCHOONOVER, Acting Chief Judge.
The appellant, Ladawn Gibson, challenges the judgment and sentence imposed upon her after she was found guilty of violating her community control. We find no merit in the appellant’s contention that the trial court erred by revoking her community control, but because of a guidelines scoresheet error, we must remand for resentencing. The appellant originally pled guilty to the crime of aggravated child abuse in violation of section 827.03(l)(b), Florida Statutes (1993). The trial court sentenced the appellant to serve one year of community control to be followed by four years of probation. The sentence was a downward departure based upon the appellant’s plea. The guidelines scoresheet classified the offense as a level eight offense.
Based upon the evidence presented at an evidentiary hearing held pursuant to an affidavit charging the appellant with violations of the terms and conditions of her community control, the court revoked the appellant’s community control and sentenced her to 70.4 months in the state prison. The appellant filed a timely notice of appeal. As mentioned above, we find no merit in any of the appellant’s contentions concerning the violation of her community control and affirm the order revoking her community control without further discussion. We do find, however, that there was a sentencing error based upon the improper application of section 921.0012, Florida Statutes (1993).
Florida Rule of Criminal Procedure 3.702(c) provides that felony offenses not listed in section 921.0012 are assigned a severity level as described in section 921.0013. Appellant was charged with aggravated battery on a child in violation of section 827.03(l)(b) and not pursuant to section 827.03(l)(a). Aggravated battery on a child as defined in section 827.03(l)(a) is the only form of aggravated child abuse specifically listed in the 1993 version of section 921.0012. The legislature amended section 921.0012 in 1995 but that version of the statute does not apply in this case.
Because a violation of section 827.03(l)(b) was not specifically listed in section 921.0012 the severity level 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 remand for resentencing with a corrected guidelines scoresheet.
Affirmed in part, reversed in part, and remanded with instructions.
FRANK and BLUE, JJ., concur.
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Overway v. State, 718 So. 2d 308 (Fla. 5th DCA 1998)…DED. GRIFFIN, C.J., and GOSHORN, J., concur. . § 827.03, Fla. Stat. (1995). . § 827.04(2), Fla. Stat. (1995). . Defendant’s other claims of error are without merit. See State v. Craft, 685 So. 2d 1292, 1293 (Fla. 1996); see also Gibson v. State, 691 So. 2d 544, 545 (Fla. 2d DCA 1997); Kama v. State, 507 So. 2d 154, 156 (Fla. 1st DCA 1987); § 921.6012(2), Fla. Stat. (Supp.1996); § 921.0016(l)(b), Fla. Stat. (1995). . The state argues that the trial court’s failure to instruct on the permissive lesser incl…
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Colson v. State, 711 So. 2d 604 (Fla. 2d DCA 1998)…See § 921.0013, Fla. Stat. (1993). Section 921.0013(1) states that a felony of the third degree must be ranked as a level one offense. See § 921.0013(1), Fla. Stat. (1993). See also Kahn v. State, 700 So. 2d 767 (Fla. 2d DCA 1997); Gibson v. State, 691 So. 2d 544 (Fla. 2d DCA 1997). Appellant’s seoresheet must be corrected to reflect a level one offense ranking instead of a level two. We, therefore, reverse the sentence imposed and remand to resentence appellant pursuant to a corrected guidelines seoresheet…
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Roberts v. State, 715 So. 2d 302 (Fla. 5th DCA 1998)…ction 921.0012, Florida Statutes (1993).8 Therefore, these convictions should have been scored as level seven offenses, and the trial court erred when it denied defendant’s motion to correct his sentencing guidelines seoresheet. See Gibson v. State, 691 So. 2d 544, 545 (Fla. 2d DCA 1997). On cross-appeal, the state argues the trial court lacked authority to resentenee defendant in this case because this court did not remand this matter to the trial court for resentencing after defendant’s direct appeal was r…
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
- Jenkins v. State, 661 So. 2d 411 (Fla. 4th DCA 1995)
- Putnam v. Ward, 677 So. 2d 884 (Fla. 3d DCA 1996)
- Newberry v. State, 677 So. 2d 884 (Fla. 5th DCA 1996)