Kolbe v. State

Dec 31, 1985
84-2549
Versions:480 So. 2d 694
11 Fla. L. Weekly 96

HERSEY, Chief Judge.

As a result of a finding of violation of probation Hans Richard Kolbe was sentenced under the guidelines for a felony offense committed before October 1, 1983. He appeals on the basis that he did not affirmatively elect to be sentenced under the guidelines as required under such circumstances by section 921.001(4)(a), Florida Statutes (1983). It also appears that no guidelines scoresheet was available to the trial court at the time of sentencing, a violation of rule 3.701 d.1., Florida Rules of Criminal Procedure.

Review of the transcript reveals only one colloquy that could reasonably be interpreted as a reference to sentencing under the guidelines:

THE COURT: I believe he is coming under the first category?

MR. GAETA: That‘s correct.

THE COURT: Bumped up one category he will receive a sentence of 30 months with the Department of Corrections in the State Prison.

This is inadequate to demonstrate an affirmative election of guidelines sentencing. See, e.g., Rodriguez v. State, 458 So.2d 899 (Fla. 2d DCA 1984); Jordan v. State, 460 So.2d 477 (Fla. 2d DCA 1984).

It was also reversible error not to have a guidelines scoresheet available at sentencing. Finklea v. State, 471 So.2d 608 (Fla. 1st DCA 1985); Myrick v. State, 461 So.2d 1359 (Fla. 2d DCA 1984).

We therefore vacate the sentence and remand for resentencing.

REVERSED AND REMANDED.

HURLEY and DELL, JJ., concur.