Cabrera v. StateCabrera v. State
Pedro Cabrera appeals his convictions and sentences of aggravated battery, robbery and possession of a vehicle with an altered vehicle identification number. We affirm the convictions but reverse the sentences.
With regard to the first issue on appeal, assuming arguendo that the point was properly preserved, we conclude that
With regard to the second issue, the State concedes that the defendant‘s objection during the prosecutor‘s closing argument should have been sustained insofar as it was susceptible of a suggestion that defendant may be engaged in other uncharged criminal conduct. See Randolph v. State, 556 So.2d 808, 809 (Fla. 5th DCA 1990); see generally Shorter v. State, 532 So.2d 1110, 1111 (Fla. 3d DCA 1988); State v. Bermudez, 515 So.2d 421, 422 (Fla. 3d DCA 1987). We conclude, however, that the comments complained of by defendant were harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).1
Defendant‘s third point has merit. At the time of the offenses defendant was on probation. For disposition of the instant case, a category 3 sentencing guidelines scoresheet was prepared. Item IV of the scoresheet, “legal status at time of offense,” specifies 17 points if defendant is under legal constraint. Id.; see
In preparing the scoresheet the court assessed 17 points for each of the three counts, for a total of 51 points for legal constraint. That approach — multiplying legal constraint points times each count — has been adopted in the fourth and fifth districts. See Carter v. State, 571 So.2d 520 (Fla. 4th DCA 1990); Green v. State, 570 So.2d 1014 (Fla. 5th DCA 1990) (question certified); Flowers v. State, 567 So.2d 1055 (Fla. 5th DCA 1990); Walker v. State, 546 So.2d 764 (Fla. 5th DCA 1989).
The second district has interpreted the guidelines to call for assessment of legal constraint only once per scoresheet. See Lewis v. State, 574 So.2d 245 (Fla. 2d DCA 1991); see also Scott v. State, 574 So.2d 247 (Fla. 2d DCA 1991); Worley v. State, 573 So.2d 1023 (Fla. 2d DCA 1991). See generally Florida Rules of Criminal Procedure Re: Sentencing Guidelines (Rules 3.701 and 3.988), 576 So.2d 1307 (Fla. 1991). We think the latter is the better view and align ourselves therewith. We certify conflict with the fourth and fifth district decisions cited above.
Assuming the second district approach is adopted, the State suggests the following analysis. The guidelines scoresheet was designed on the assumption that it would ordinarily be used for sentencing after disposition of a single indictment or information. By definition, offenses joined in a single indictment or information “are based on the same act or transaction or on two or more connected acts or transactions.”
If two or more indictments or informations are brought on for simultaneous sentencing, only a single scoresheet will be prepared. Clark v. State, 572 So.2d 1387, 1389-91 (Fla. 1991);
The present case involves sentencing upon conviction under a single information. Points for legal constraint should have been scored only once. Elimination of the excess points will reduce the guideline ranges. We therefore reverse the sentencing order and remand for resentencing under a corrected scoresheet.
Because the scoring issue presented here affects numerous sentencings on a daily basis, we certify that we have passed on a question of great public importance:
Whether legal constraint points may be assessed more than once on a single sentencing guidelines scoresheet?
Convictions affirmed; sentencing order reversed and remanded for resentencing; conflict certified; question certified.