475 So. 2d 713 | Fla. Dist. Ct. App. | 1985
Lead Opinion
Appellant was adjudicated guilty of, and received concurrent sentences for, attempted sexual battery, burglary, kidnapping, and false imprisonment.
Since the amended rule clearly has a disadvantageous effect on the length of appellant’s sentence, we agree that the court should have utilized the rules in effect on the date of the commission of the crimes. The application of the amended sentencing guidelines to appellant’s sentence would be ex post facto and unconstitutional. Richardson v. State, 472 So.2d 1278, (Fla. 1st DCA 1985); cf. Dewberry v. State, 472 So.2d 792, (Fla. 1st DCA 1985).
The State argues that appellant is not entitled to our review of this issue since he failed to make a contemporaneous objection at sentencing. We disagree. See Whitfield v. State, 471 So.2d 633 (Fla. 1st DCA 1985); but cf. Dailey v. State, 471 So.2d 1349, (Fla. 1st DCA 1985).
REVERSED and REMANDED for re-sentencing consistent with the views expressed in this opinion.
. Appellant was also convicted of sexual battery but was not sentenced thereon.
. Chapter 84-328, sections 1, 3, Laws of Florida; The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So.2d 824 (Fla.1984).
. Rule 3.701(d)(3), as amended, reads as follows:
(3) “Primary offense” is defined as the most serious offense at conviction. In the case of multiple offenses, the primary offense is determined in the following manner:
(a) A separate guidelines scoresheet shall be prepared scoring each offense at conviction as the "primary offense at conviction” with the other offenses at conviction scored as "additional offenses at conviction.”
(b) The guidelines scoresheet which recommends the most severe sentence range shall be the scoresheet to be utilized by the sentencing judge pursuant to these guidelines.
.Prior to July 1, 1984, Rule 3.701(d)(3) provided:
(3) "Primary offense” is defined as the most serious offense at conviction. In the case of multiple offenses, the primary offense is determined on the basis of the following:
(a) The offense with the highest statutory degree, in the order of life felony, first-degree*714 felony punishable by life, first-degree, second-degree, and third-degree felonies; and
(b) In the event of two (2) or more offenses of the same degree, by the lowest numerical offense category.
. Appellant was also sentenced on the remaining offenses, receiving five years for attempted sexual battery, eight years for burglary, and five years for false imprisonment, the sentences to run concurrently with the seventeen years.
Concurrence Opinion
concurring:
In response to the Motion for Rehearing the appellant suggests that the conclusion that sexual battery should be the primary offense, as that conclusion appeared in the concurring opinion, is erroneous. In support thereof, as in the original briefing, the appellant sets forth convictions for sexual battery as a second degree felony as opposed to armed burglary and kidnapping, both first degree felonies punishable by life. If the judgment executed by the trial court supported the argument of counsel, then the concurring opinion would be with
Once counsel has taken note of the apparent error that may be in the record and has exhausted the remedies available before the trial court, then, and only then, will this court be in a position to review the issue properly brought before us.
Concurrence Opinion
concurring.
I concur in the majority opinion but view some uncertainty from that opinion as to what disposition should be made of the sexual battery conviction. Whether or not a sentence may now be imposed for the sexual battery conviction was neither argued nor addressed by this court, and I do not presume to do so now. However, it appears that the trial court cannot ignore the fact of conviction for sexual*battery in determining the appropriate guideline range for sentencing. It appears that sexual battery, as a category two offense, would be the primary offense for determining the range of sentence to be considered, at least with regard to the remaining offenses for which convictions were obtained and sentences imposed.
Rehearing
ON MOTION FOR REHEARING
The Motion for Rehearing or Certification of Questions and Stay of Mandate is DENIED.
BARFIELD, J., concurs, with a written opinion.