CURTIS HOLT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Curtis Holt challenged denial of his motion to correct an illegal sentence for sexual battery of a child by a familial custodian. The trial court improperly scored his offense as level nine when it should have been level seven under 1994 sentencing guidelines, resulting in a sentence that exceeded the permissible range without a departure.
The offense should have been scored as a level seven offense because section 794.011(8)(b) was an unlisted first-degree felony in 1993-1995, and unlisted first-degree felonies must be scored as level seven under the guidelines. The scoresheet error was not harmless because the six-year sentence could not have been imposed under the corrected guidelines without a departure.
[1] A defendant's waiver of sentencing guidelines must be affirmatively established in the record.
[2] A felony offense not listed on the sentencing guidelines ranking chart is to be scored as a level seven offense if it is a first-degree felony.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“To the contrary, during the sentencing hearing, the defendant stated: 'Who waived the guidelines? I did? No, I didn't.'”
Establishes that Holt did not waive sentencing guidelines despite the trial court's finding that he did
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Join FLexlaw to unlock all legal intelligenceHolt pleaded guilty to sexual battery of a child aged 12-18 by a familial custodian under section 794.011(8)(b). He was sentenced to six years incarce…
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PER CURIAM.
Appellant challenges an order of the trial court denying his motion to correct his illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He pled straight up to sexual battery of a child twelve years of age or older but less than eighteen years of age by a familial custodian, in violation of section 794.011(8)(b), Florida Statutes. He was sentenced to six years of incarceration followed by two years of sexual offender probation.
The trial court indicated in her order denying appellant’s 3.800(a) motion that both the State and the defendant waived the sentencing guidelines. Athough the record clearly shows that the State waived the guidelines, there is no indication that the defendant waived the guidelines. To the contrary, during the sentencing hearing, the defendant stated: “Who waived the guidelines? I did? No, I didn’t.”
At the request of the defendant, the State stipulated at the sentencing hearing that the offense date was January 1, 1994. To address the concern of the trial court that the 1994 sentencing guidelines range would not be exceeded by her sentencing, the State provided a 1994 guidelines score-sheet to the court that scored the offense as a level nine offense. Appellant filed the instant motion claiming that his offense should have been scored as a level seven offense under the 1994 sentencing guidelines, which would have set the upper end of the guidelines range at 70.5 months (5.8 years) of incarceration.
In 1993, section 794.041, which formerly outlawed sexual battery by a familial custodian, was repealed, and section 794.011(8)(b), outlawing the same crime, was enacted. See Ch. 93-156, §§ 3-4, at 911, Laws of Fla. Section 921.0012, which contains the sentencing guidelines ranking chart, did not list section 794.011(8)(b) until October 1, 1995. See Ch. 95-184, § 5, at 1679, 1692, Laws of Fla. Section 921.0013(3), Florida Statutes (1993), states that an unlisted 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. 4th DCA 2000) (same), review denied, No. SC00-2049, 804 So. 2d 329 (Fla. Apr.3, 2001); Mitchell v. State, 791 So. 2d 1257 (Fla. 5th DCA 2001) (same).
This scoresheet error was not harmless because the appellant’s current sentence could not have been imposed under the 1994 sentencing guidelines without a departure. See Hummel v. State, 782 So. 2d 450 (Fla. 1st DCA 2001). Accordingly, we reverse the denial of Appellant’s motion and remand for resentencing with the primary offense scored as a level seven offense under the 1994 sentencing guidelines.
BOOTH, BROWNING and POLSTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Chatfield v. State, 814 So. 2d 1217 (Fla. 1st DCA 2002)…evel 7, rather than a Level 9, offense. He alleges, further, that the error resulted in an improper departure sentence without written reasons. The state concedes that the outcome of this appeal is controlled by our recent decision in Holt v. State, 808 So. 2d 290 (Fla. 1st DCA 2002). Accordingly, as in Holt, we reverse and remand for resentencing scoring the primary offense as a Level 7 offense pursuant to the 1994 guidelines. REVERSED and REMANDED, with directions. ALLEN, C.J., MINER and WEBSTER, JJ., c…
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Willis v. State, 823 So. 2d 233 (Fla. 1st DCA 2002)…pellant asserts that correction of the error would reduce the sentencing range to 99.9 to 166.5 months, i.e., below the cumulative 264-month sentence imposed on re-sentencing. The State has filed as supplemental controlling authority Holt v. State, 808 So. 2d 290 (Fla. 1st DCA 2002),1 in which this court held that under the 1994 sentencing guidelines, defendant Holt’s conviction for sexual battery by a familial custodian should have been scored as a Level 7, rather than Level 9, offense; and that the error w…
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Greenler v. State, 888 So. 2d 139 (Fla. 1st DCA 2004)…PER CURIAM. The appellant challenges the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The outcome of this appeal is controlled by our decision in Holt v. State, 808 So. 2d 290, 291-92 (Fla. 1st DCA 2002). Accordingly, as in Holt, we reverse and remand for resentencing scoring the primary offense as a Level 7 offense pursuant to the 1994 guidelines. REVERSED and REMANDED, with directions. ALLEN, DAVIS and BENTON, JJ.,…
Authorities Cited
- Hummel v. State, 782 So. 2d 450 (Fla. 1st DCA 2001)
- IVY v. Moore, 782 So. 2d 450 (Fla. 1st DCA 2001)
- Millien v. State, 766 So. 2d 475 (Fla. 4th DCA 2000)
- Chavis v. State, 796 So. 2d 607 (Fla. 2d DCA 2001)
- Mitchell v. State, 791 So. 2d 1257 (Fla. 5th DCA 2001)