KENNETH LEE BOGAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Lee Bogan challenged victim injury points added to his sentencing scoresheet upon violation of probation and the forfeiture of his gain-time. The Second District Court of Appeal reversed, holding that a sentencing issue from the original sentence could be raised on appeal following probation violation, and that Bogan was entitled to his accrued gain-time.
The court reversed the imposition of victim injury points and remanded for resentencing without those points, finding the case indistinguishable from Wright v. State. The court also reversed the forfeiture of Bogan's gain-time, holding that he was entitled to his accrued gain-time under State v. Green.
[1] A sentencing issue arising from the original sentence may be raised on appeal following a violation of probation.
[2] An appeal from re-sentencing following a violation of probation is not the proper time to assert an error in the original scoresheet, if that error is not otherwise prese…
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Join FLexlaw to unlock all legal intelligence“Bogan did not object to the imposition of the twenty victim injury points either at sentencing or on appeal.”
Establishes that Bogan failed to timely challenge the victim injury points at original sentencing
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Join FLexlaw to unlock all legal intelligenceIn October 1989, Bogan was sentenced to five years' imprisonment for lewd and lascivious assault on a minor. The trial court imposed twenty victim inj…
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PER CURIAM.
Kenneth Lee Bogan challenges the imposition of twenty victim injury points on his scoresheet prepared upon violation of probation, and he challenges the trial court’s forfeiture of his accrued gain-time. We reverse on both points.
In October of 1989 Bogan was sentenced to five years’ imprisonment for lewd and lascivious assault on a minor in violation of section 800.04, Florida Statutes (1989). At the time of the original sentencing, the Florida Rules of Criminal Procedure provided for the imposition of victim injury points on a scoresheet based on a defendant’s physical contact with the victim. See Fla. R.Crim. P. 3.701(d)(7). Bogan did not object to the imposition of the twenty victim injury points either at sentencing or on appeal.
Having previously failed to challenge the imposition of victim injury points, Bogan now seeks to challenge the inclusion of victim injury points upon revocation of probation. In support of his argument, Bogan relies on this court’s decision in Wright v. State, 707 So. 2d 385 (Fla. 2d DCA 1998). In Wright, this court permitted a Karchesky1 sentencing issue arising from the original sentence to be raised on appeal following a violation of probation. We find this case indistinguishable from Wright and, therefore, reverse the trial court’s denial of Bogan’s motion to correct his scoresheet and remand for resentencing. The new sentencing must be pursuant to a scoresheet that does not include these victim injury points.
We recognize that this decision is in conflict with the First District Court of Appeal’s opinion in Fitzhugh v. State, 698 So. 2d 571 (Fla. 1st DCA 1997). In Fitzhugh the defendant, citing Karchesky, challenged the imposition of forty points for victim injury on his original guidelines scoresheet. In reliance on State v. Montague, 682 So. 2d 1085 (Fla.1996), the Fitzhugh court affirmed the inclusion of the points, reasoning that “an appeal from re-sentencing following violation of probation is not the proper time to assert an error in the original scoresheet.”
Additionally, we reverse the trial court’s forfeiture of Bogan’s gain-time. Bogan is entitled to his accrued gain-time. See State v. Green, 547 So. 2d 925 (Fla.1989).
We reverse the sentence imposed and remand this ease to the trial court for resentencing consistent with this opinion.
PARKER, C.J., and QUINCE, PEGGY A., Associate Judge, Concur. ALTENBERND, J., Concurs with opinion.
. Karchesky v. State, 591 So. 2d 930 (Fla.1992).
ALTENBERND, Judge,
Concurring.
I agree that Mr. Bogan is entitled to his accrued gain-time. By my calculations, he is entitled to immediate release. Accordingly, I see no reason to reach the other issue.
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Tasker v. State, 48 So. 3d 798 (Fla. 2010)…he district court certified that its decision is in direct conflict with the decisions of the Second District Court of Appeal in Stubbs v. State, 951 So. 2d 910 (Fla. 2d DCA 2007), Spell v. State, 731 So. 2d 9 (Fla. 2d DCA 1999), and Bogan v. State, 725 So. 2d 1216 (Fla. 2d DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. The issue presented in this case is whether a claim of scoresheet error, in this case involving imposition of victim injury points in a Criminal Punishment Code sentencing…1 / 4
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Routenburg v. State, 802 So. 2d 361 (Fla. 2d DCA 2001)…“an appeal from resentencing following violation of probation is not the proper time to assert an error in the original scoresheet.” This court has declined to follow Fitzhugh. See Spell v. State, 731 So. 2d 9, 10 (Fla. 2d DCA 1999); Bogan v. State, 725 So. 2d 1216, 1217 (Fla. 2d DCA 1999). In Rowan v. State, 791 So. 2d 40 (Fla. 2d DCA 2001), this court held that a Karehesky issue can be raised for the first time in a 3.800(a) motion, even after violations of probation. Thus, Routenberg is entitled to raise th…
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Stubbs v. State, 951 So. 2d 910 (Fla. 2d DCA 2007)…challenged at the original sentencing or on direct appeal.” Matton v. State, 872 So. 2d 308, 312 (Fla. 2d DCA 2004); see also West v. State, 823 So. 2d 174, 174 (Fla. 2d DCA 2002); Spell v. State, 731 So. 2d 9, 10 (Fla. 2d DCA 1999); Bogan v. State, 725 So. 2d 1216, 1217 (Fla. 2d DCA 1999). This rule applies even where the defendant pleads pursuant to a negotiated plea if he or she did not specifically agree to the inclusion of the points on the scoresheet. See Wright v. State, 707 So. 2d 385, 385 (Fla. 2d DCA…
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
- State v. Green, 547 So. 2d 925 (Fla. 1989)
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- State v. Montague, 682 So. 2d 1085 (Fla. 1996)
- Fitzhugh v. State, 698 So. 2d 571 (Fla. 1st DCA 1997)
- Darian Wright v. State, 707 So. 2d 385 (Fla. 2d DCA 1998)