Cahill v. StateCahill v. State
The appellant, Robert William Cahill, appeals from the judgment and sentence entered against him pursuant to a jury verdict finding him guilty of kidnapping in violation of
The offense in this case was committed in September, 1983. At sentencing on June 29, 1984, the parties discussed the guidelines scoresheet. The court stated it was going to depart from the guidelines, set forth reasons for its departure, and then sentenced the appellant to life imprisonment. This appeal timely followed.
Where an offense occurs prior to October 1, 1983, the sentencing guidelines may only be applied if the defendant affirmatively selects to be sentenced under them. In Re Rules of Criminal Procedure, 439 So.2d 848 (Fla. 1983). Although the appellant in this case did not object to the imposition of a sentence under the guidelines, he did not affirmatively select to be sentenced under them. Neither appellant‘s silence, nor the discussion of a scoresheet presented pursuant to the rule, can constitute a clear and unequivocal selection to be sentenced under the guidelines. Jordan v. State, 460 So.2d 477 (Fla. 2d DCA 1984).
Since the record does not reflect a clear and unequivocal selection by the appellant, we reverse and remand for resentencing. At resentencing the appellant may affirmatively select to be sentenced under the guidelines. If he does not, the court must resentence him according to the law in effect
Reversed and remanded for resentencing.
GRIMES, A.C.J., and DANAHY, J., concur.