BRYAN W. PLUMMER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bryan Plummer appeals the denial of his 3.800(b) motion challenging his sentencing following a conviction for DUI manslaughter, DUI serious bodily injury, and vehicular homicide. The court reverses the denial of his sentencing motion, finding that the trial court incorrectly calculated statutory maximums and violated double jeopardy by sentencing on counts that should have been abated.
The court reversed the sentencing, holding that the sentences on the DUI manslaughter counts exceeded the statutory 15-year maximums and the written judgments and sentences on the vehicular homicide counts violated double jeopardy. However, the court upheld the trial court's assessment of scoresheet points for severe bodily injury, finding that the jury's findings of DUI manslaughter and serious bodily injury supported such points.
[1] A motion to correct sentencing error filed under Florida Rule of Criminal Procedure 3.800(b)(2) preserves contentions for appellate review.
[2] Sentences for DUI manslaughter cannot exceed the statutory maximum of 15 years.
Previewing 2 of 5 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“The jury's findings of DUI manslaughter and DUI serious bodily injuries support the imposition of the death and severe victim injury points.”
Establishes that no additional express jury finding of 'severe' bodily injury is required when jury has found DUI manslaughter and serious bodily injury
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Join FLexlaw to unlock all legal intelligenceWhile driving under the influence, Plummer collided with an oncoming vehicle, killing three people and seriously injuring another. He was charged with…
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PER CURIAM.
Bryan Plummer (Appellant) appeals the denial of his 3.800(b) motion, three evidentiary rulings, and a ruling that section 316.193, Florida Statutes (2002), is constitutional. We reverse the denial of Appellant’s 3.800(b) motion and affirm the trial court on the other issues without discussion.
While driving under the influence of alcohol, Appellant collided with an oncoming vehicle causing the death of three people and the serious bodily injury of another. Consequently, Appellant was charged with DUI manslaughter (Counts I — III); DUI resulting in serious bodily injury (Count IV); and vehicular homicide (Counts V-VII). A jury found Appellant guilty as charged on Counts I-IV and guilty of the lesser offense of culpable negligence for Counts V-VII.
At the sentencing hearing, the trial court abated Counts V-VII (because they violated double jeopardy) and orally sentenced Appellant to a total of 36 years in prison. Appellant’s written judgments also sentenced him to a total of 36 years, but adjudicated guilt and imposed sentences on all seven counts with his Criminal Punishment Code (CPC) scoresheet assessing .6 points for the previously abated culpable negligence counts.
After the sentencing hearing, Appellant filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b) contending: (1) his 36-year total sentence exceeded the maximum sentence allowed under the CPC, because the trial court incorrectly believed the statutory max for Counts I — III was 20 years instead of 15 years; (2) the written judgments and sentences for Counts V-VII violated double jeopardy and needed to be vacated; and (3) the scoresheet points for Count IV were illegal pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because the jury never made an express finding that the “serious” bodily injury was “severe.”
The State conceded Appellant’s first two contentions, but disagreed with Appellant’s third contention that the severe bodily injury scoresheet points were illegal. The trial court granted Appellant’s motion more than 60 days after it was filed; thus, it is deemed to have been denied. See, e.g., Hart v. State, 773 So. 2d 1263 (Fla. 1st DCA 2000). Nevertheless, because Appel lant filed the motion under rule 3.800(b)(2), his contentions are preserved for our review. Fla. R.Crim. Proc. 3.800(b)(2); see also Hart, 773 So. 2d at 1264.
The trial court properly assessed score-sheet points for severe bodily injury. See Arrowood v. State, 843 So. 2d 940, 941 (Fla. 1st DCA 2003) (“The jury’s findings of DUI manslaughter and DUI serious bodily injuries support the imposition of the death and severe victim injury points.”). However, as the State concedes, the sentences on Counts I — III exceed the 15-year statutory máximums, and the written judgments and sentences as well as the score-sheet points for Counts V-VII violate double jeopardy.
We reverse Appellant’s sentences and remand for resentencing. On remand, the trial court must announce a separate sentence on each count. See Fla. R.Crim. Proc. 3.701(d)(12). Although the trial court may again sentence Appellant to a total of 36 years, the court may not exceed the statutory máximums for Counts I — III and must use a corrected CPC scoresheet.
AFFIRMED in part, REVERSED in part, and REMANDED.
ALLEN, LEWIS, and HAWKES, JJ., concur.
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Authorities Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000)
- Blakely v. Washington, 542 U.S. 296 (U.S. 2004)
- Arrowood v. State, 843 So. 2d 940 (Fla. 1st DCA 2003)
- Duver Caquimbo v. State, 773 So. 2d 1263 (Fla. 3d DCA 2000)
- Hart v. State, 773 So. 2d 1263 (Fla. 1st DCA 2000)