DARRIN BARTHOLEMEW HAMM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the written judgment and sentencing scoresheet must be corrected to reflect the jury's verdict of simple robbery, and the departure sentence was improperly imposed based on invalid or unsupported reasons.
[1] A written judgment must accurately reflect the jury's verdict, and a discrepancy requires remand for correction.
[2] A departure sentence requires an accurate scoresheet, and an improperly scored offense necessitates remand for recalculation.
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Join FLexlaw to unlock all legal intelligenceThe appellant was convicted of robbery with a firearm but the jury found him guilty of simple robbery. The trial court entered a judgment for armed ro…
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PER CURIAM.
The appellant, Darrin Bartholemew Hamm, challenges his judgment and sentence. Although we affirm the appellant’s conviction, we reverse the sentence and remand for resentencing.
The appellant was charged by information with robbery with a firearm in violation of section 812.13, Florida Statutes (1985).
Although a jury found the appellant guilty of robbery without a weapon, the written judgment reflects that the appellant was convicted of armed robbery, a first degree felony. The guidelines score-sheet, which also reflects that the appellant was convicted of armed robbery, indicates that the primary offense was scored as a first degree felony along with points for four prior misdemeanor convictions and points for legal constraint at the time the subject offense was committed. Although the guidelines sentencing range based on this scoresheet was three and one-half years to four and one-half years imprisonment, the trial court sentenced the appellant to fifteen years in prison.
The trial court gave the following reasons for imposing a departure sentence:
(1) The offense for which the defendant was sentenced was committed in a calculated manner without pretense of moral or legal justification.
(2) The offense for which the defendant was sentenced was committed in an unusually sophisticated manner. (3) The defendant induced minors to participate in the offense for which he was sentenced.
This timely appeal followed.
The parties agree that the case must be remanded for the entry of a corrected judgment to reflect that the appellant was convicted of simple robbery rather than armed robbery. See Ghianuly v. State, 516 So. 2d 277 (Fla. 2d DCA 1987). Since the type and degree of crime is reflected and scored improperly on the scoresheet, we also remand this case for the preparation of an accurate scoresheet because without knowing the correct presumptive sentence, the trial court was without sufficient information to decide whether to depart from the guidelines. See Bass v. State, 496 So. 2d 880 (Fla. 2d DCA 1986).
While correcting the scoresheet, the trial should examine the propriety of scoring seventeen points for legal constraint. Those points were scored because the appellant was serving a period of probation for an expired tag violation. As to that offense, the appellant affirmatively alleged that he did not have an attorney and did not know that he had the right to an attorney for this minor traffic violation when he appeared accompanied only by his mother, pled guilty, and was placed on six months probation. If, in addition to the above allegations, the appellant can establish that he had a right to counsel when he was placed on probation, see Leffew v. State, 518 So. 2d 1376 (Fla. 2d DCA 1988), the state then must present evidence to overcome this prima facie showing that the conviction may have been obtained in violation of the appellant’s constitutional right to counsel. See Croft v. State, 513 So. 2d 759 (Fla. 2d DCA 1987).
The appellant further contends that the reasons the trial court gave for imposing the departure sentence were either invalid or not supported by the record.
We agree. The lack of “moral or legal justification” is inherent in most crimes and, therefore, is an invalid reason for departure. See Scurry v. State, 489 So. 2d 25 (Fla.1986). As to the other two reasons, the record does not support a finding that the appellant exercised control over his two codefendants or induced them to participate in the crime, nor do we find evidence of sophistication in the manner in which the crime was committed. See State v. Mischler, 488 So. 2d 523 (Fla.1986). Since the reasons given are either invalid or unsupported by the record, we reverse the departure sentence and remand for resentencing within the guidelines. See Shull v. Dugger, 515 So. 2d 748 (Fla.1987).
We also agree with the appellant’s contention that the trial court improperly assessed $251 in costs against him. When the costs were orally imposed, the trial court failed to provide statutory authority for any of the costs. The appellant, therefore, had no real opportunity to object to the costs as would normally be required by this court’s holding in Henriquez v. State, 513 So. 2d 1285 (Fla. 2d DCA 1987). We, accordingly, strike these costs. See Brown v. State, 506 So. 2d 1068 (Fla. 2d DCA), petition for review denied, 515 So. 2d 229 (Fla.1987). Should the trial court decide to again impose costs, it must cite proper statutory authority, see Brown, and provide the appellant with adequate notice as required by Jenkins v. State, 444 So. 2d 947 (Fla.1984).
We find no merit in any of the appellant’s other contentions and, therefore, affirm the trial court in all other respects.
Affirmed in part, reversed in part, and remanded.
SCHEB, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.
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Hlad v. State, 565 So. 2d 762 (Fla. 5th DCA 1990)…, expressly holding that the points from a defendant’s previous convictions may be used to enhance the defendant’s sentence on a subsequent conviction if the defendant did not have a right to counsel in the prior proceedings. See also Hamm v. State, 521 So. 2d 354 (Fla. 2d DCA 1988). Of the other appellate courts in Florida, only the Third District has not addressed the issue now before us. The problem with which we deal here has been thoroughly and perceptively discussed by Professor David S. Rudstein in hi…
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Cooper v. State, 538 So. 2d 105 (Fla. 4th DCA 1989)…ndant’s previous convictions may be used to enhance the defendant’s sentence on this conviction if the defendant did not have a right to counsel in the prior proceedings. See, e.g., Leffew v. State, 518 So. 2d 1376 (Fla. 2d DCA 1988); Hamm v. State, 521 So. 2d 354 (Fla. 2d DCA 1988). Therefore, in reversing this sentence, we remand with instructions to resentence the defendant after determining whether the defendant in fact had a right to counsel with respect to the 14 allegedly uncounseled convictions, and i…
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R.L. Williams v. State, 544 So. 2d 1125 (Fla. 3d DCA 1989)…So. 2d 1370 (Fla. 4th DCA 1987). Further, because premeditation and the lack of legal justification are inherent elements of armed robbery they, too, are invalid reasons for departure. Hansbrough v. State, 509 So. 2d 1081 (Fla.1987); Hamm v. State, 521 So. 2d 354 (Fla. 2d DCA 1988); Lumpkin v. State, 510 So. 2d 1164 (Fla. 3d DCA 1987). The fourth reason given for departure, the victim’s known vulnerability due to excessive drinking, is also invalid. The record shows that Williams, as well as Rodriguez, had…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- Scurry v. State, 489 So. 2d 25 (Fla. 1986)
- Alphonso Brown v. State, 506 So. 2d 1068 (Fla. 2d DCA 1987)
- Bass v. State, 496 So. 2d 880 (Fla. 2d DCA 1986)
- Jackson Croft v. State, 513 So. 2d 759 (Fla. 2d DCA 1987)
- Henriquez v. State, 513 So. 2d 1285 (Fla. 2d DCA 1987)
- Jennings Harold Leffew v. State, 518 So. 2d 1376 (Fla. 2d DCA 1988)
- Ghianuly v. State, 516 So. 2d 277 (Fla. 2d DCA 1987)