Moore v. StateMoore v. State
Moore appeals from his conviction of, and sentence for, armed robbery, rаising several points for our review.
Points I and II, regarding alleged errors made by the court during the trial stage are without merit. We therefore affirm the cоurt‘s denial of Moore‘s motion to suppress evidence, and hold that the trial court did not improperly limit defense cross-examination of a stаte witness.
Points III and IV, however, pertaining to the sentencing stage, merit somе discussion. Under Point III, Moore argues that the trial court erred in sentencing him рursuant to the sentencing guidelines, since the record is silent as to whether Moore “knowingly and intelligently” waived his right to parole eligibility. Moore makes twо contentions to advance his argument. First, he contends that the applications of the guidelines to his case, where he committed his crime рrior to October 1, 1983, the effective date of
Second, Moore contends that a defendant‘s choice to be sentenced under the guidelines should be as carefully scrutinized by the trial court as when a defendant enters a guilty plea. As his аrgument goes, a determination should be made as to whether a defendant knows that by being sentenced under the guidelines, he has lost his eligibility for parolе. Thus, the court‘s scrutiny would concentrate on the issue of a knowing and intelligеnt waiver.
We reject Moore‘s argument under Point III for one major reason. The Florida Supreme Court, in its opinion approving the sentencing guidelines, and the Florida Legislature, in its legislation authorizing and implementing the guidelines, require only a showing that a defendant “affirmatively selected” to be sеntenced under the guidelines. In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So.2d 848 (Fla. 1983);
The record indicates the following exchange took place between the trial court and defense counsel:
MR. GREEN: For the record, Your Honor, I have discussed this with my client. The Court was kind enough to give us an option. I think even under the law we‘re entitled to an option for us to determine whether or not we would elect to be sentenced under the guidelines. I have discussed this with my client. We have chosen to be sentenced under the guidelines, even though the crime was committed before October 1.
THE COURT: All right. He elects to be sentenced under guidelines?
MR. GREEN: That‘s correct.
THE COURT: I want the court file to clearly show that. (T. 588) (emphasis added)
We hold the above collоquy to be clear evidence of Moore‘s affirmative selection to be sentenced under the guidelines.
However, we would agree with Moоre‘s final argument under Point IV, that the trial court erred in scoring Moore by including in his number of prior convictions, over defense objection, a prior conviction of armed robbery. That particular offense was committed the day after the offense in the present case occurred.
SMITH and WENTWORTH, JJ., concur.