528 So. 2d 1212 | Fla. Dist. Ct. App. | 1988
Lead Opinion
Appellant was convicted of two counts of attempted second-degree murder. The information had charged attempted first-degree murder “by stabbing” his victims. The guidelines scoresheet used in sentencing included points for victim injury. The defendant correctly asserts the rule applicable at the time of sentencing that victim injury could only be properly scored if it was an element of the offense.
However, victim injury may be included in computing the sentencing scoresheet for an attempted homicide, even without regard to the rule amendment, where the specific injury is charged in the information and demonstrated by the evidence. Cf. Moore v. State, 469 So.2d 947 (Fla. 5th DCA 1985), quashed on other grounds, 489 So.2d 1130 (Fla.1986).
The judgment and sentence are, therefore, affirmed.
. We note that this requirement has subsequently been eliminated. See Florida Rules of Criminal Procedure Re Sentencing Guidelines (Rules 3.701 and 3.988), 509 So.2d 1088 (Fla.1987).
However, this amendment is not applicable here. Miller v. Florida, — U.S. —, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987).
Rehearing
ON MOTION FOR REHEARING AND CERTIFICATION OF CONFLICT
We grant appellant’s motion, in part, for the purpose of adding the following certification to the opinion issued May 18, 1988:
We certify conflict with Smith v. State, 501 So.2d 139 (Fla. 2d DCA 1987).
In all other respects, the motion for rehearing is denied.