DONALD RAY CHAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Chavis was convicted of sexual activity with a child and sentenced to 109 months under 1995 sentencing guidelines. The appellate court held that under the prior 1994 guidelines, his offense should have been scored as a level seven offense (not level nine), resulting in a sentencing range of 40.5 to 67.5 months, making his sentence a departure that entitled him to resentencing under Heggs v. State.
Chavis is entitled to resentencing. The offense of sexual activity with a child in familial or custodial relationship under section 794.011(8)(b) was not listed in the 1994 sentencing guidelines ranking chart and therefore must be ranked as a level seven offense under section 921.0013(3). Because Chavis's sentence of 109 months exceeds the resulting sentencing range of 40.5 to 67.5 months, it constitutes a departure and triggers the right to resentencing under Heggs.
[1] A first-degree felony not listed in the sentencing guidelines ranking chart must be ranked as a level seven offense.
[2] The offense of sexual activity with a child in familial or custodial relationship, when not listed in the ranking chart, is to be scored as a level seven offense under th…
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Join FLexlaw to unlock all legal intelligence“Under section 921.0013(3), Florida Statutes (1993), a first-degree felony not listed in the ranking chart must be ranked as a level seven offense.”
Establishes the controlling statutory rule for scoring offenses not explicitly listed in the sentencing guidelines ranking chart
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Join FLexlaw to unlock all legal intelligenceIn April 1998, Chavis pleaded guilty to sexual activity with a child in familial or custodial relationship under section 794.011(8)(b), Florida Statut…
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PER CURIAM.
Donald Ray Chavis seeks review of the trial court’s order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Chavis argues that the trial court erred in finding that he was not entitled to resentencing under Heggs v. State, 759 So. 2d 620 (Fla.2000). We agree and reverse.
In April 1998 Chavis pleaded guilty to sexual activity with a child in familial or custodial relationship under section 794.011(8)(b), Florida Statutes (1995). The underlying crime took place on February 1, 1997. The court sentenced Chavis to 109 months’ incarceration using a 1995 sentencing guidelines scoresheet which reflected a sentencing range of 107.2 to 180 months’ imprisonment. The offense was scored as a level nine offense pursuant to section 921.0012, Florida Statutes (1995).
In January 2001 Chavis filed a motion for postconviction relief pursuant to rule 3.800(a) alleging that he was entitled to resentencing under Heggs because his sentence would have been a departure under the 1994 sentencing guidelines, which ranged from 40.5 to 67.5 months. The trial court found that Chavis had standing to pursue the claim but denied relief because Chavis’ sentence of 109 months would not have been a departure under the 1994 sentencing guidelines. The court found that Chavis’ sentencing range under the 1994 sentencing guidelines would be 77.25 to 128.75 months. On appeal, Chavis argues that the trial court incorrectly calculated his sentence under the 1994 sen tencing guidelines by scoring the offense as a level nine offense. We agree and reverse.
Under section 921.0013(3), Florida Statutes (1993), a first-degree felony1 not listed in the ranking chart must be ranked as a level seven offense. The crime of sexual activity with a child in familial or custodial relationship under section 794.011(8)(b) is not listed in the ranking chart. Thus, the first-degree felony would have been ranked as a level seven offense. Millien v. State, 766 So. 2d 475, 477-78 (Fla. 4th DCA 2000), review denied, — So. 2d -, No. SC00-2049 (Fla. Apr. 3, 2001); Roberts v. State, 715 So. 2d 302, 303 (Fla. 5th DCA 1998).
The trial court rejected Chavis’ argument that his offense would have been scored as a level seven offense and found that the omission of section 794.011(8)(b) from the ranking chart in section 921.0013(3) was not intended by the legislature. The trial court noted that the ranking chart included section 794.041(2)(b), which had been repealed by chapter 93-156, section 4, Laws of Florida, and replaced with section 794.011(8)(b). However, that argument has been rejected by our sister courts. Millien, 766 So. 2d at 477-78; Roberts, 715 So. 2d at 303. Thus, the offense would have been scored as a level seven offense under the 1994 sentencing guidelines.
If Chavis’ offense is scored as a level seven offense, his applicable sentencing range would be 40.5 to 67.5 months. Because his sentence of 109 months exceeds this range, Chavis is entitled to resentencing under Heggs. 759 So. 2d at 627. Therefore, we reverse and remand for re-sentencing.
Reversed and remanded.
PARKER, A.C.J., and ALTENBERND and SALCINES, JJ., Concur. . The crime of sexual activity with a child in familial or custodial relationship is a first-degree felony under section 794.011 (S)(b), Florida Statutes (1993).
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Wilson v. State, 913 So. 2d 1277 (Fla. 2d DCA 2005)…for scoring on 1994 score-sheets. Originally, it contained' the old statute number for this offense. As a result of this glitch, the courts have held that this specific sexual battery offense must be scored as a level 7 offense. See Chavis v. State, 796 So. 2d 607 (Fla. 2d DCA 2001); Millien v. State, 766 So. 2d 475 (Fla. 4th DCA 2000); Roberts v. State, 715 So. 2d 302, 303 (Fla. 5th DCA 1998). The trial court in this’ case tried to distinguish these cases by pointing out that the glitch was corrected, effec…
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Holt v. State, 808 So. 2d 290 (Fla. 1st DCA 2002)…d felony of the first degree is to be scored as a level seven offense. Accordingly, a violation of section 794.011(8)(b), Florida Statutes (1993) is an unlisted first-degree felony that should be scored as a level seven offense. See Chavis v. State, 796 So. 2d 607 (Fla. 2d DCA 2001) (declining to accept argument that omission from ranking chart was unintended by the legislature, therefore requiring offense to be ranked as a level seven offense rather than level nine); Millien v. State, 766 So. 2d 475 (Fla. 4t…
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Riley v. State, 884 So. 2d 218 (Fla. 2d DCA 2004)…ges of twelve and eighteen in a familial or custodial relationship, under section 794.011(8)(b), Florida Statutes (1995). He was sentenced under the 1994 sentencing guidelines to 231.7 months in prison. In his motion, Riley cited to Chavis v. State, 796 So. 2d 607 (Fla. 2d DCA 2001), and argued that the trial court incorrectly calculated his sentence by scoring his offenses as level nine offenses. We agree. Chavis held that, because section 794.011(8)(b) was not listed as a level nine offense in the 1994 rank…
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
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Roberts v. State, 715 So. 2d 302 (Fla. 5th DCA 1998)
- Millien v. State, 766 So. 2d 475 (Fla. 4th DCA 2000)