MICHAEL DEON KELLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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NORTHCUTT, Judge.
In December 1997, a jury found Michael Kelly guilty of robbery with a firearm, a violation of section 812.13, Florida Statutes (1995). The court sentenced him to the maximum sentence permitted by the 1995 guidelines, but that sentence was reversed pursuant to Heggs v. State, 759 So. 2d 620 (Fla.2000). Kelly v. State, 765 So. 2d 882 (Fla. 2d DCA 2000). At resentencing, the State prepared a new scoresheet under the 1994 guidelines. Over Kelly’s objection, 18 points for the use of a firearm were added to the scoresheet. In this appeal, Kelly challenges the addition of those points, and the State concedes error. Section 921.0014(1), Florida Statutes (1995), and Florida Rule of Criminal Procedure 3.702(12) provide that 18 points are assessed for possession of firearm during the commission of any felony other than those enumerated in section 775.087(2), Florida Statutes (1995). Kelly’s crime, robbery, is one of the enumerated felonies. Therefore, the 18 points were incorrectly added to his scoresheet. Gibson v. State, 713 So. 2d 1069 (Fla. 2d DCA 1998). We reverse and remand for resentencing under a properly prepared scoresheet.
Reversed and remanded.
ALTENBERND, A.C.J., and CASANUEVA, J., Concur.
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Citator
Cited By
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Chambers v. State, 217 So. 3d 210 (Fla. 4th DCA 2017)…, and Remanded. Conner and Forst, JJ., concur. . Here, because robbery is an enumerated felony under section 775.087(2), Florida Statutes, it was error to include 18 points on appellant’s scoresheet for possession of a firearm. See Kelly v. State, 796 So. 2d 578, 579 (Fla. 2d DCA 2001). . The trial court previously ruled that, due to a defect in the charging document, appellant was not subject to the 10-year mandatory minimum sentence under the 10-20-Life statute.…
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Toney Mitchell v. State, 880 So. 2d 1261 (Fla. 2d DCA 2004)…Statutes (1995), and Florida Rule of Criminal Procedure 3.702(d)(12) prohibit the addition of points for possession of a firearm where the conviction is for an enumerated felony under section 775.087(2), Florida Statutes (1995). See Kelly v. State, 796 So. 2d 578 (Fla. 2d DCA 2001). Murder is an enumerated felony under section 775.087(2)(a). The inclusion on Mitchell’s scoresheet of eighteen points for possession of a firearm was therefore erroneous. Since Mitchell was given the maximum guidelines sentence,…1 / 2
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Kelly v. State, 765 So. 2d 882 (Fla. 2d DCA 2000)
- Gibson v. State, 713 So. 2d 1069 (Fla. 2d DCA 1998)