474 So. 2d 280 | Fla. Dist. Ct. App. | 1985
Hurst appeals from his sentences received for two counts of burglary and one count of grand theft. He argues that his burglary sentences are improper under the Guidelines, pursuant to the committee note to Florida Rule of Criminal Procedure 3.701(d)(12) in effect at the time the crimes were committed. We agree.
In this ease the trial court imposed the following concurrent
1. Burglary2 — 3½ years incarceration, followed by a period of ten years probation.
2. Grand theft second degree — 3V2 years incarceration.
3. Burglary3 — 3V2 years incarceration followed by a period of 10 years probation.
The applicable guidelines scoresheet totaled 73 points, which corresponds to a presumptive sentence of two and one-half to three and one-half years. The trial court did not purport to impose a sentence departing from the presumptive sentence range under the Guidelines. Fla.R.Crim.P. 3.701(d)(ll).
Both parties concede that at least two of the sentences
However, this amended committee note became effective on July 1, 1984. Ch. 84-328, Laws of Fla.; § 921.001(4)(b), Fla. Stat. (1983); see also The Florida Bar Amendment to Rules of Criminal Procedure (3.701-3.988 — Sentencing Guidelines), 451 So.2d 824 (Fla.1984). The original committee note provided, in pertinent part, “If a split sentence is imposed ... the incarcerative portion imposed shall not be less than the minimum of the guideline range, and the total sanction imposed can
Since application of the current committee note results in a harsher punishment than the original one, we do not think it can be applied retroactively. Joyce v. State, 466 So.2d 433 (Fla. 5th DCA 1985); Carter v. State, 452 So.2d 953 (Fla. 5th DCA 1984); U.S. CONST. art. I § 9, CL. 3; Art. I, § 10, Fla. Const. Accordingly, we vacate the sentences imposed for the two burglaries involved in this case, and remand for resen-tencing on all three counts in order for the trial court to have an opportunity to properly apportion the guideline sentence among the three counts. Fla.R.Crim.P. 3.701(d)(12).
SENTENCES VACATED; REMANDED.
. § 921.161, Fla. Stat. (1983).
. Case No. 84-1076.
. Case No. 84-4044.
.We need not address the issue of whether the combination of all three sentences could constitute a "split sentence.”
. Section 810.02(3), Florida Statutes (1983) states that a burglary where the perpetrator did not make an assault or battery or was armed is a second degree felony. Section 775.082(3)(c), Florida Statutes (1983) provides that a second degree felony shall be punished by a term of imprisonment not exceeding fifteen years.