HENRY JOSEPH SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Henry Joseph Smith appeals his conviction and sentence for kidnapping, aggravated assault, and other crimes. The State concedes three sentencing errors: improper scoring of life felonies, incorrect conviction for aggravated assault as a second-degree felony when it is third-degree, and improper consecutive minimum mandatory sentences for crimes committed in a single criminal episode. The court vacates and remands for resentencing while affirming other issues.
The court agreed with the State that all three sentencing errors occurred. Count V should have been scored as an additional offense rather than a primary offense. Aggravated assault should have been convicted and sentenced as a third-degree felony, not second-degree. Consecutive minimum mandatory sentences cannot be imposed for crimes committed in a single criminal episode without proper justification. The composite guidelines score and recommended sentencing range must be corrected.
[1] A life felony conviction should be scored as a primary offense at conviction, while a first-degree felony punishable by life should be scored as an additional offense at…
[2] Aggravated assault with a firearm is a third-degree felony, not a second-degree felony.
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Join FLexlaw to unlock all legal intelligence“Count V should have been scored as an additional offense at conviction.”
Establishes that the trial court erred in scoring both kidnapping offenses as primary offenses
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Join FLexlaw to unlock all legal intelligenceSmith was convicted of kidnapping with a firearm under count IV (a life felony) and simple kidnapping under count V (a first-degree felony punishable …
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BARFIELD, Judge. ,
Henry Joseph Smith appeals from a judgment and sentence, raising several issues for review. The State concedes that the trial court erred in scoring two life felonies as primary offenses at conviction when Smith was convicted of kidnapping with a firearm under count IV, a life felony, and simple kidnapping under count V, a first-degree felony punishable by life. Count V should have been scored as an additional offense at conviction. The State also concedes that the trial court erred in convicting Smith of a second-degree felony and imposing a 15-year prison sentence for aggravated assault with a firearm under count III of the amended information. Aggravated assault is a third-degree felony which carries a maximum penalty of 5 years imprisonment. Sections 784.021(2) and 775.082(3)(d), Fla.Stat. (1987). Finally, the State concedes that the trial court erred in imposing consecutive minimum mandatory sentences totalling 18 years, (3 years on counts II and IV consecutive to 15 years on count X), for crimes which were committed in a single criminal episode. See Murray v. State, 491 So. 2d 1120 (Fla.1986); Palmer v. State, 438 So. 2d 1 (Fla.1983); Hogan v. State, 529 So. 2d 1127 (Fla. 1st DCA 1988); Dowdell v. State, 500 So. 2d 594 (Fla. 1st DCA 1986).
Correction of the first two sentencing errors would change the composite guidelines score and recommended sentencing range. We vacate these sentences and remand for resentencing. We note that, upon remand, the trial court may impose a departure sentence based upon proper written reasons. See Roberts v. State, 547 So. 2d 129 (Fla.1989). We also remand this case with directions that the trial court correct the third sentencing error. We otherwise affirm the remaining issues raised by Smith on appeal. ,
REVERSE and REMAND for resentencing.
THOMPSON and ZEHMER, JJ„ concur.
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Citator
Cited By
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McDONALD v. State, 564 So. 2d 523 (Fla. 1st DCA 1990)…ve mandatory minimum sentences could not be imposed pursuant to either of those statutes alone for multiple offenses which occurred in a single criminal episode. For example, see Hernandez v. State, 556 So. 2d 767 (Fla. 2d DCA 1990); Smith v. State, 555 So. 2d 973 (Fla. 1st DCA 1990); Hogan v. State, 529 So. 2d 1127 (Fla. 1st DCA 1988); and Murray v. State, 491 So. 2d 1120 (Fla.1986). However, the instant case is distinguishable from Palmer and its progeny in that, although appellant’s separate crimes occurre…
Authorities Cited
- Dean v. Publix Supermarkets, Inc., 438 So. 2d 1 (Fla. 1983)
- Murray v. State, 491 So. 2d 1120 (Fla. 1986)
- Doyal Powell Roberts v. State, 547 So. 2d 129 (Fla. 1989)
- Napoleon Dowdell v. State, 500 So. 2d 594 (Fla. 1st DCA 1986)
- Hogan v. State, 529 So. 2d 1127 (Fla. 1st DCA 1987)