JAMES HINKLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Hinkle was convicted of first-degree murder, attempted first-degree murder, and armed burglary. He challenged his sentences on counts II and III as illegal because he was sentenced under sentencing guidelines that were not in effect when his offenses were committed. The court reversed and remanded for resentencing, holding that Hinkle is entitled to elect between a pre-guidelines sentence or sentencing under the guidelines in effect at the time of resentencing.
A defendant sentenced under sentencing guidelines for offenses committed before the guidelines' effective date has an illegal sentence. Upon resentencing, the defendant may elect either to be sentenced under a pre-guidelines sentence or under the sentencing guidelines in effect at the time of resentencing.
[1] A prior appellate ruling based on a factual error may be reconsidered.
[2] Sentencing guidelines that have been declared unconstitutional are no longer in effect.
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“the sentencing guidelines were unconstitutional prior to their adoption by the legislature on July 1, 1984”
Establishes the legal basis for finding Hinkle's sentences illegal despite the earlier implementation date of October 1, 1983.
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Join FLexlaw to unlock all legal intelligenceHinkle committed the offenses on December 23, 1983. He was initially sentenced on September 21, 1984. The sentencing guidelines were implemented by th…
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PER CURIAM.
Appellant was convicted of first-degree murder, attempted first-degree murder and armed burglary. In his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800, he claims that his sentences on counts II and III are illegal because he was sentenced under the sentencing guidelines when they were not in effect at the time of the commission of the offenses; he further claims that because the sentencing guidelines were adopted by the legislature prior to the date of his initial sentencing, he is entitled, upon resentencing, to either elect to be sentenced under the guidelines in effect at the date of resentencing or to elect a pre-guidelines sentence.
We agree and, accordingly, reverse the trial court’s denial of his motion and remand for resentencing. The date of the commission of appellant’s offenses was December 23, 1983. The Florida Supreme Court implemented the sentencing guidelines in In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So. 2d 848 (Fla.1983), which pronounced that the guidelines “will be effective for all applicable offenses committed after 12:01 a.m., October 1,1983, and, if affirmatively selected by the defendant, to sentences imposed after that date for applicable crimes occurring pri-or thereto.” Id. at 849.
The trial court found, based on In re Rules of Criminal Procedure, that appellant was properly sentenced under the guidelines on counts II and III.
However, in Smith v. State, 537 So. 2d 982 (Fla.1989), the supreme court held that the sentencing guidelines were unconstitutional prior to their adoption by the legislature on July 1, 1984. In the present case, appellant was initially sentenced on September 21, 1984. Because the commission of appellant’s offenses was prior to the effective date of the guidelines, appellant’s sentence is illegal. See Wahl v. State, 543 So. 2d 299 (Fla. 2d DCA 1989), However, since the date of sentencing was subsequent to that date, appellant is entitled to be resenteneed, at which time he may elect to be sentenced under the guidelines, or he may elect a pre-guidelines sentence wherein he could receive the statutory maximum. See Smith, 537 So. 2d at 987. If appellant elects to be sentenced under the guidelines, he shall be sentenced under the guidelines in effect at the time of his election. See Smith, 537 So. 2d at 987; Connell v. Wade, 538 So. 2d 854 (Fla.1989.); Wahl, 543 So. 2d at 300-301.
Reversed and remanded with directions.
FRANK, A.C.J., and BLUE and NORTHCUTT, JJ., concur.
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Citator
Cited By
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Hinkle v. State, 737 So. 2d 1152 (Fla. 2d DCA 1999)…r (Count I), attempted first-degree murder with a firearm (Count II), and armed burglary (Count III). This court has twice reversed and remanded Hinkle’s ease for resentencing. See Hinkle v. State, 480 So. 2d 206 (Fla. 2d DCA 1985); Hinkle v. State, 705 So. 2d 919 (Fla. 2d DCA 1997). This appeal results from the second resentencing at which the trial court sentenced Hinkle on Counts II and III to twenty years’ imprisonment to run concurrently with each other but consecutively to the life imprisonment with a t…
Authorities Cited
- In re Rules of Criminal Procedure (sentencing Guidelines), 439 So. 2d 848 (Fla. 1983)
- Alphonso P. Smith v. State, 537 So. 2d 982 (Fla. 1989)
- Wahl v. State, 543 So. 2d 299 (Fla. 2d DCA 1989)
- Connell v. Wade, 538 So. 2d 854 (Fla. 1989)