537 So. 2d 195 | Fla. Dist. Ct. App. | 1989
We affirm Williams’ convictions for attempted first degree murder, attempted armed robbery, and grand theft. However, Williams’ sentencing guidelines scoresheet reflects two separate miscalculations which require us to remand for resentencing.
First, Williams’ conviction for attempted armed robbery was erroneously scored as a first degree felony, when in fact the offense is a second degree felony. Lee v. State, 400 So.2d 1238 (Fla. 1st DCA
Additionally, the trial court erred in awarding twenty-one points for victim injury. Fla.R.Crim.P. 3.701(d)(7). When considered in conjunction with the foregoing, this error enhances the presumptive sentence by one cell. Under the version of Rule 3.701(d)(7) in effect at the time Williams’ offenses were committed, victim injury could be scored only if it were an element of one of those offenses. The Florida Bar Re: Rules of Criminal Procedure (Sentencing Guidelines, 3.701, 3.988), 482 So.2d 311 (Fla.1985). Victim injury is not an element of the offense of robbery; Toney v. State, 456 So.2d 559 (Fla. 2d DCA 1984); nor, unless specifically pled in the charging instrument, of attempted murder. Fennell v. State, 528 So.2d 1212 (Fla. 4th DCA 1988); Smith v. State, 501 So.2d 139 (Fla. 2d DCA 1987). Accordingly, Williams must be resentenced utilizing a corrected scoresheet.
Affirmed in part, reversed in part, and remanded with directions.