Brown v. StateBrown v. State
Appellant, Tommy Brown, appeals thе sentence imposed upon his conviction for escapе, complaining that the guidelines scoresheet was improperly сalculated. We grant appellant‘s request for a belated appeal. Long v. Wainwright, 474 So.2d 7 (Fla. 1st DCA 1985), pet. for rev. denied, 482 So.2d 350 (Fla. 1986).
Brown was charged with escape from a poliсe vehicle after his arrest for driving without a valid license. Thereaftеr, he entered into a plea agreement whereby he would plead nolo contendere to the escape charge in exchange for a sentence at the lower end of the sentencing guidelines range. The sentencing guidelines scoresheet assessed twenty-four points for appellant‘s being “under legal constraint” at the timе of the offense, resulting in a recommended sentence of threе and one-half to four and one-half years. The “legal constraint” referred to was appellant‘s custody in the police vehiclе, from which he escaped. Appellant did not object at the timе of sentencing that the point assessment was improper. The trial сourt accepted the plea and sentenced appellant to three and one-half years’ incarceration, the lоwest range of the guidelines. Had the twenty-four points for “legal constraint” not been included, the recommended guidelines range would have been two and one-half to three and one-half years’ incarceration.
First, the state‘s contention that we cannot review this error because no contemporaneous objection was madе at sentencing has been determined adversely to the state‘s position in State v. Whitfield, 487 So.2d 1045 (Fla. 1986). See also Brunson v. State, 489 So.2d 1159 (Fla. 1st DCA 1986).
Legal status at time of offense is defined as follows: Offenders on parole, probation, or community control; in custody serving a sentence; escapees; fugitives who have fled to avoid prosecution or who have failed to appear fоr a criminal judicial proceeding or who have violated cоnditions of a supersedeas bond; and offenders in pretrial intervention or diversion programs.
At the time of his escape, Brown was under arrest for driving without a valid license. His status as arrestee from which he escaped is not the kind of legal constraint contemplated by
Since a proper calculation of appellant‘s scoresheet would place him in a guidelines range of two and one-half to three and one-half years, and since the plea agreement contemplated a sentence at the low end of the guidelines range (which the trial judge previously did), we cannot conclude, as urged by the state, that the error is harmless. Accordingly, we reverse and remand for resentencing.
REVERSED and REMANDED.
WENTWORTH, J., and HALL, J. LEWIS, Jr., Associate Judge, concur.