KENIEL NUNEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Florida appellate court affirmed attempted robbery conviction but remanded for resentencing because trial court improperly assessed victim injury points for a death of which defendant was acquitted.
Where a defendant is acquitted of second-degree murder but convicted of attempted robbery with a firearm, the trial court errs in assessing 120 victim injury points for the victim's death.
[1] A trial court errs in assessing 120 victim injury points for a victim's death when the defendant has been acquitted of second-degree murder, even if convicted of a relate…
Previewing 1 of 1 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceAppellant was charged with attempted robbery with a firearm and second-degree murder arising from the same incident. The jury acquitted him of second-…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Attempted Robbery With A Firearm cases and more on FLexlaw
STRINGER, Judge.
Appellant, Kernel Nunez, challenges his conviction and sentence for attempted robbery with a firearm. We find no merit in his contention that the trial court erred in denying his motion for judgment of acquittal and in failing to give his requested jury instruction as to independent acts. Thus, we affirm his conviction without further comment. We, however, remand this case for resentencing because the trial court improperly added 120 victim injury points to appellant’s scoresheet due to the victim’s death.
In addition to being charged with attempted robbery with a firearm, appellant was charged with second-degree murder for a death which occurred during the robbery. The jury acquitted appellant of the second-degree murder charge. Since the jury acquitted appellant of second-degree murder, the trial court should not have assessed 120 victim injury points for the victim’s death. See Truitt v. State, 787 So. 2d 53 (Fla. 2d DCA 2001) (holding that where the defendant was charged with second-degree murder but only convicted of aggravated battery, the trial court erred in imposing 120 victim injury points); Key v. State, 779 So. 2d 525 (Fla. 2d DCA 2000). Accordingly, we remand this case for re-sentencing without assessing 120 victim injury points for the victim’s death. On remand, the trial court may impose other appropriate victim injury points.
Affirmed in part, reversed in part, and remanded for resentencing.
THREADGILL, A.C.J., and GREEN, J., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Lane v. State, 981 So. 2d 596 (Fla. 1st DCA 2008)…not convict appellant of second-degree murder but rather the lesser included offense of aggravated battery with a deadly weapon, appellant should not have been assessed 120 victim injury points for the victim’s death.” Id.; see also Nunez v. State, 793 So. 2d 96 (Fla. 2d DCA 2001) (same). We agree with the Second District and hold that victim injury points for “death” cannot be scored where a defendant is acquitted of all murder charges and convicted of aggravated battery. But see Sims v. State, 869 So. 2d…
Authorities Cited
- KEY v. State, 779 So. 2d 525 (Fla. 2d DCA 2000)
- Truitt v. State, 787 So. 2d 53 (Fla. 2d DCA 2001)