DANIEL GAMBLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Daniel Gamble appealed his sentence for armed trafficking in cocaine, arguing the trial court incorrectly ranked it as a level ten offense when it should have been ranked as a level seven offense. The court agreed, finding that statutory enhancements for weapon possession do not make a crime "unlisted" for sentencing guideline purposes, and vacated the sentence for resentencing.
Armed trafficking in cocaine should be ranked as a level seven offense because statutory enhancements for weapon possession do not make a crime "unlisted" for sentencing guideline purposes. The trial court erred in applying section 921.0013(5) and must rescore the conviction at level seven.
[1] A felony offense reclassified under section 775.087, Florida Statutes, is ranked one level above its original ranking for sentencing purposes.
[2] A reclassification of a felony offense due to the use of a weapon does not render the offense "unlisted" for the purpose of determining its offense severity ranking.
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Join FLexlaw to unlock all legal intelligence“An offense does not become unlisted and subject to the provisions of section 921.0013, because of a reclassification of the degree of felony pursuant to section 775.0845, section 775.087, section 775.0875 or section 794.023.”
The amended Florida Rule of Criminal Procedure 3.703(c)(2) establishing that enhancement statutes do not "unlist" crimes for sentencing purposes.
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Join FLexlaw to unlock all legal intelligenceGamble pled nolo contendere to armed trafficking in cocaine, carrying a concealed firearm, and aggravated fleeing or attempting to elude a law enforce…
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ANTOON, J.
Daniel Gamble pled nolo contendere to armed trafficking in cocaine1, carrying a concealed firearm2, and aggravated fleeing or attempting to elude a law enforcement officer.3 He appeals his sentence arguing the trial court erred in ranking his conviction for armed trafficking in cocaine as a level ten offense. Mr. Gamble’s armed trafficking conviction should have been ranked as a level seven offense and therefore we vacate his sentence and remand this matter for resentencing.
Section 775.087, Florida Statutes (1993), provides that when a defendant displays, uses, threatens, or attempts to use a weapon or firearm during the commission of a first degree felony, the crime shall be reclassified as a life felony. Thus, Mr. Gamble’s armed trafficking conviction is a life felony. Section 921.0013(5), Florida Statute (1993), provides that any life felony not listed in the offense severity ranking chart should be scored as a level ten offense. “Armed trafficking in cocaine” is not listed on the offense severity ranking chart; however, “trafficking in cocaine” 4 is listed in the chart and ranked as a level seven offense. See § 921.0012, Fla. Stat. (Supp.1994).
At sentencing, the trial court scored Mr. Gamble’s conviction as a level ten offense, holding that section 921.0013(5), Florida Statutes (1993), applied because the crime of “armed trafficking in cocaine” is not listed in the offense severity ranking chart. Mr. Gamble objected, arguing that the statutory enhancement for possessing a weapon does not make the crime of trafficking in cocaine “unlisted” for the purpose of section 921.0013; therefore, his conviction should have been scored as a level seven offense pursuant to section 921.0012. The trial court overruled this objection.
Mr. Gamble committed his crimes on December 27, 1994. Subsequent to this date, our legislature and our supreme court both addressed the issue raised here by Mr. Gamble. First, effective October 1, 1995, section 775.087 was amended as follows: For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944, a felony offense which is reclassified under this section is ranked one level above the ranking under s. 921.0012 or s. 921.0013 of the felony offense committed.
§ 775.087, Fla. Stat. (1995). Second, effective October 1, 1996, rule 3.703(c)(2) of the Florida Rules of Criminal Procedure was amended to provide: “An offense does not become unlisted and subject to the provisions of section 921.0013, because of a reclassification of the degree of felony pursuant to section 775.0845, section 775.087, section 775.0875 or section 794.023.” See Amendments to Florida Rules of Criminal Procedure re: Sentencing Guidelines, 685 So. 2d 1213, 1214 (Fla.1996). In the opinion adopting this revision, our supreme court explained that enhancement statutes do not “unlist” the crimes for the purposes of determining the applicable offense severity ranking. Id.
Although Mr. Gamble committed this crime prior to the enactment of the amendments to section 775.087 and rule 3.703(c)(2), our courts have a duty to consider subsequent legislation in arriving at a correct interpretation of a prior statute. See Ducharme v. State, 690 So. 2d 1358, 1360 (Fla. 2d DCA 1997) (citing Ivey v. Chicago Ins. Co., 410 So. 2d 494, 497 (Fla.1982)). The amendment to Florida Rule of Criminal Procedure 3.703 makes it clear that the penalty enhancement in section 775.087 does not make a crime “unlisted” for the purposes of determining the applicable offense severity ranking. Therefore, the trial court should have ranked Mr. Gamble’s armed trafficking conviction as a level seven offense. Accordingly, Mr. Gamble is entitled to be resentenced with a corrected scoresheet. See Goodwin v. State, 600 So. 2d 1310 (Fla. 5th DCA 1992).
JUDGMENTS AFFIRMED; SENTENCES VACATED; and CAUSE REMANDED FOR RESENTENCING.
DAUKSCH and GOSHORN, JJ„ concur. . §§ 893.135(l)(b)l.a„ 775.087(1), Fla. Stat. (1993).
. § 790.01(2), Fla. Stat. (1993).
. § 316.1935, Fla. Stat. (1993).
. § 893.135(l)(b)l.a„ Fla. Stat. (1993).
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ivey v. Chicago Ins. Co., 410 So. 2d 494 (Fla. 1982)
- Ducharme v. State, 690 So. 2d 1358 (Fla. 2d DCA 1997)
- Goodwin v. State, 600 So. 2d 1310 (Fla. 5th DCA 1992)
- Amendments to Florida Rules of Criminal Procedure re Sentencing Guidelines, 685 So. 2d 1213 (Fla. 1996)