JAMES EARL SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Smith appeals the trial court's denial of his post-conviction motion challenging his sentencing scoresheet. The court found that the trial judge improperly added 25 points to Smith's sentencing guidelines for possession of a semi-automatic firearm when the firearm's use was inherent in the underlying felonies, warranting reversal and resentencing.
The court held that extra points may not be added to a sentencing guidelines scoresheet when the firearm's use or possession is inherent in the underlying felony. The 25-point addition was improper because it was based on convictions (possession of a firearm by a convicted felon and carrying a concealed weapon) where the firearm use was inherent, and attempted burglary is exempt from such enhancement under Florida Statutes section 775.087(2).
[1] Extra points may not be added to a defendant's sentencing guideline scoresheet based on the possession of a firearm when the use or possession of the firearm is inherent…
[2] Attempted burglary is exempted from the assessment of additional points under Florida Rule of Criminal Procedure 3.703(d)(19) when the offense is subject to enhancement p…
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Join FLexlaw to unlock all legal intelligence“Extra points may not be added to a defendant's sentencing guideline scoresheet on the basis that the appellant possessed a firearm, where the use or possession of the firearm is inherent in the commission of the underlying felony.”
Establishes the primary legal principle that firearm enhancements cannot be applied when firearm use is inherent in the underlying offense
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceSmith pled guilty to and was convicted of possession of a firearm by a convicted felon, carrying a concealed weapon, and attempted burglary. At senten…
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PER CURIAM.
The appellant seeks review of the trial court’s order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The appellant pled to and was convicted of possession of a firearm by a convicted felon, carrying a concealed weapon, and attempted burglary. In sentencing the appellant, the trial court added 25 points to the appellant’s sentencing guidelines scoresheet because the appellant allegedly possessed a semi-automatic firearm. Because the appellant has alleged a facially sufficient claim of a scoresheet error that is apparent on the face of the record, we reverse.
Extra points may not be added to a defendant’s sentencing guideline scoresheet on the basis that the appellant possessed a firearm, where the use or possession of the firearm is inherent in the commission of the underlying felony. See Thompson v. State, 756 So. 2d 39 (Fla.2000). Therefore, the trial court could not have properly added the 25 points for the appellant’s convictions of possession of a firearm by a convicted felon or carrying a concealed weapon. Further, because the offense of burglary is listed as a crime that is subject to enhancement pursuant to section 775.087(2), Florida Statutes (1993), attempted burglary is exempted from the assessment of the additional points. See Fla. R.Crim. P. 3.703(d)(19). The trial court’s addition of these extra points therefore appears to be improper. Furthermore, the scoresheet error resulted in a departure sentence, and thus was not harmless. See Hummel v. State, 782 So. 2d 450 (Fla. 1st DCA 2001).
We accordingly reverse and remand with instructions for the trial court to either attach record excerpts conclusively demonstrating that the appellant is not entitled to relief, or to resentence the appellant without adding the extra 25 points.
ERVIN, KAHN, and DAVIS, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Hummel v. State, 782 So. 2d 450 (Fla. 1st DCA 2001)
- IVY v. Moore, 782 So. 2d 450 (Fla. 1st DCA 2001)
- Thompson v. State, 756 So. 2d 39 (Fla. 2000)