480 So. 2d 218 | Fla. Dist. Ct. App. | 1985
Alan Randolph INSCORE, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, Fourth District.
*219 Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
HERSEY, Chief Judge.
Alan Randolph Inscore was convicted of attempted aggravated battery with a deadly weapon and was sentenced to thirty months' incarceration and thirty months' probation. He was ordered to make restitution in the amount of $8,660.25 and although having been adjudicated indigent, was ordered without prior notice to pay costs to the Crimes Compensation Fund.
We affirm the conviction and the requirement for restitution; however, we vacate the sentence and the order to pay costs.
On appellant's sentencing guidelines scoresheet, thirty-six points were added because the victim was injured. The provision of the guidelines pertaining to victim injury, rule 3.701(d)(7), Florida Rules of Criminal Procedure, was amended between the time of commission of the offense and the time of sentencing. Appellant contends that the version of the guidelines in effect at the time of commission of the offense applies rather than the later revision, relying on Miller v. State, 468 So.2d 1018 (Fla. 4th DCA 1985). The holding in that case has been implicitly disapproved by the Supreme Court of Florida. See State v. Jackson, 478 So.2d 1054 (Fla. 1985). Regardless, victim injury should not have been scored here under either version of the guidelines, and we vacate the sentence and remand for resentencing with directions that victim injury not be scored. Motyka v. State, 457 So.2d 1114 (Fla. 1st DCA 1984).
The assessment of costs is stricken without prejudice to the state to tax costs after notice to appellant and an opportunity to be heard. Jenkins v. State, 444 So.2d 947 (Fla. 1984).
AFFIRMED EXCEPT SENTENCE VACATED AND COSTS STRICKEN.
REMANDED WITH INSTRUCTIONS.
GLICKSTEIN and HURLEY, JJ., concur.
