RON KIMBERLY DRAYTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ron Drayton appealed his convictions for obstructing a law enforcement officer with violence, battery on a law enforcement officer, and assault on a law enforcement officer. The court affirmed his convictions but found the trial court committed sentencing error by including a habitualized offense on the guidelines scoresheet for the subsequent counts, requiring resentencing.
The court affirmed Drayton's convictions but held that the scoresheet was improper because a habitualized offense cannot be listed on a guidelines scoresheet for other counts. The court also found insufficient evidence in the record to support victim injury points. Sentences on counts two and three were vacated and remanded for resentencing.
[1] A court may correct a serious, patent sentencing error or illegal sentence even if the issue was not preserved for review, provided the court has jurisdiction on other pr…
[2] A habitualized offense, for which a defendant has received a habitualized sentence, cannot be used as a primary offense for sentencing under the guidelines for other offe…
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Join FLexlaw to unlock all legal intelligence“By habitualizing an offense and giving a defendant a habitualized sentence on that offense, the court removes that offense from sentencing under the guidelines.”
Establishes the legal principle that habitualized offenses cannot be included on guidelines scoresheets for other counts
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAfter a jury trial, Drayton was convicted of three offenses: obstructing or opposing a law enforcement officer with violence (count one), battery on a…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Ron Kimberly Drayton raises several issues in this appeal of his convictions and sentences for obstructing or opposing a law enforcement officer with violence, battery on a law enforcement officer, and assault on a law enforcement officer. We affirm Drayton’s convictions. However, we find merit in Drayton’s contention that the trial court based its sentences upon an improper scoresheet. Although Drayton failed to preserve the scoresheet issue for review, we have discretion under Denson v. State, 711 So. 2d 1225 (Fla. 2d DCA 1998), to correct any serious, patent sentencing error or illegal sentence because we have jurisdiction on other preserved issues. See id. at 1226; accord Bain v. State, 730 So. 2d 296, 304 (Fla. 2d DCA 1999) (en banc).
After imposing a habitualized sentence for count one, resisting an officer with violence, the trial court then used a guidelines scoresheet for counts two and three, listing the same habitualized count one offense as the primary offense. The trial court imposed a consecutive statutory maximum five-year sentence on count two, battery on a law enforcement officer, and a time-served sentence on count three, assault on a law enforcement officer. Although these sentences were within the permitted range on the guidelines score-sheet, Drayton questions the accuracy of that scoresheet.
We agree that the scoresheet was incorrect. “By habitualizing an offense and giving a defendant a habitualized sentence on that offense, the court removes that offense from sentencing under the guidelines.” Ricardo v. State, 608 So. 2d 93, 94 (Fla. 2d DCA 1992). Accordingly, the trial court erred in listing the count one offense on the scoresheet. Therefore, we vacate Drayton’s sentences as to counts two and three, and remand for resentencing with directions to omit the habitualized offense from the scoresheet. See id. at 95.
We also note that Drayton’s score-sheet included victim injury points for the guidelines offenses of battery on a law enforcement officer and assault on a law enforcement officer. Although the jury properly convicted Drayton of battery on a law enforcement officer, the record before us is insufficient to support victim injury points because it contains no evidence that Officer Womack suffered any injury when Drayton struck Officer Womack’s head. See Terrell v. State, 668 So. 2d 656, 657 (Fla. 2d DCA 1996); Lynn v. State, 687 So. 2d 39, 42 (Fla. 5th DCA 1997) (deputy’s testimony that defendant kicked him insufficient to assess victim injury points with no testimony that kick caused discomfort or injury). Therefore, on remand, the trial court should reconsider, based on the facts in evidence, whether to include victim injury points on Drayton’s scoresheet.
Affirmed in part, reversed in part, and remanded.
BLUE, A.C.J., and FULMER and DAVIS, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Rivers v. State, 980 So. 2d 599 (Fla. 2d DCA 2008)…te concedes that it was error to score as additional offenses the counts in case number 03-3153 for which Rivers had been sentenced as a habitual felony offender and we agree. Olsen v. State, 791 So. 2d 558, 560 (Fla. 2d DCA 2001); Drayton v. State, 744 So. 2d 584, 585 (Fla. 2d DCA 1999); Perez v. State, 703 So. 2d 1131, 1132 (Fla. 2d DCA 1997). However, this error was not properly preserved by Rivers below. Affirmed in part, reversed in part, and remanded for resentencing with Rivers present. DAVIS and S…
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Gonzales v. State, 779 So. 2d 520 (Fla. 2d DCA 2000)…hed this magnitude, appellate courts in Florida regularly reversed sentences and required the trial court to re-sentence the defendant with a correct scoresheet. See, e.g., Sellers v. State, 578 So. 2d 339, 341 (Fla. 1st DCA 1991); Drayton v. State, 744 So. 2d 584 (Fla. 2d DCA 1999); Horn v. State, 736 So. 2d 728 (Fla. 2d DCA 1999); White v. State, 728 So. 2d 322 (Fla. 2d DCA 1999); Carter v. State, 705 So. 2d 582 (Fla. 2d DCA 1997); Vitanzo v. State, 750 So. 2d 662 (Fla. 1st DCA 1999); Hayes v. State, 748 So…
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Sheffield v. State, 214 So. 3d 763 (Fla. 1st DCA 2017)…al court removes that offense from sentencing under the guidelines and cannot include that offense either as a primary or additional offense on the guidelines score-sheet. See Olsen v. State, 791 So. 2d 558, 560 (Fla. 2d DCA 2001); Drayton v. State, 744 So. 2d 584, 585-86 (Fla. 2d DCA 1999); Alexander v. State, 680 So. 2d 635 (Fla. 4th DCA 1996); Byrd v. State, 643 So. 2d 1209 (Fla. 1st DCA 1994); Eaddy v. State, 626 So. 2d 291 (Fla. 4th DCA 1993); Ricardo v. State, 608 So. 2d 93, 94-95 (Fla. 2d DCA 1992); Si…
Authorities Cited
- Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999)
- Ricardo v. State, 608 So. 2d 93 (Fla. 2d DCA 1992)
- Denson v. State, 711 So. 2d 1225 (Fla. 2d DCA 1998)
- Lynn v. State, 687 So. 2d 39 (Fla. 5th DCA 1997)
- Terrell v. State, 668 So. 2d 656 (Fla. 2d DCA 1996)