PRECIOUS MILLS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Precious Mills appeals her convictions for attempted aggravated assault on a law enforcement officer and forgery of a credit card receipt. The court reverses the attempted aggravated assault conviction as a nonexistent offense under Florida law and reverses the departure sentence for forgery, remanding for resentencing.
The court holds that attempted aggravated assault on a law enforcement officer is a nonexistent offense under Florida law and reverses that conviction. The departure sentence for forgery is reversed because the defendant's attempt to avoid arrest cannot serve as a valid basis for departure on the forgery count itself, though it properly applies to the attempted assault count. The court affirms that counsel's concession without consent was error but permits the defendant to pursue an ineffective assistance of counsel claim.
[1] An offense of attempted aggravated assault on a law enforcement officer is a nonexistent offense under Florida law.
[2] A departure sentence for forgery of a credit card receipt cannot be based on the defendant's attempt to avoid arrest when the forgery was not committed to avoid arrest or…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The enhancement statute [section 784.07] contains no enhancement or reclassification of penalties for the offense of attempted commission of the enumerated offenses; therefore, attempted assault and attempted battery as well as attempted aggravated assault and battery of a law enforcement officer are nonexistent offenses.”
Establishes the legal basis for reversing the attempted aggravated assault conviction—that no such offense exists under Florida law.
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Join FLexlaw to unlock all legal intelligenceMills was convicted of attempted aggravated assault on a law enforcement officer and forgery of a credit card receipt. She received two consecutive fi…
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STEVENSON, Judge.
Appellant, Precious Mills, appeals her judgments of conviction and two five-year consecutive sentences for attempted aggravated assault on a law enforcement officer and forgery of a credit card receipt. We reverse the conviction for attempted aggravated assault on a law enforcement officer, and remand so that the sentencing scoresheet may be recalculated and Mills re- sentenced for the crime of attempted aggravated assault. See Merritt v. State, 712 So. 2d 384 (Fla.1998)(“The enhancement statute [section 784.07] contains no enhancement or reclassification of penalties for the offense of attempted commission of the enumerated offenses; therefore, attempted assault and attempted battery as well as attempted aggravated assault and battery of a law enforcement officer are nonexistent offenses.”).
We also reverse the departure sentence imposed for count II, forgery of a credit card receipt, as the stated ground for departure — Mills’ attempt to avoid arrest— cannot serve as a valid reason for departure on that count under the facts of this case. The guidelines in effect at the time that Mills committed the offenses relevant to this appeal allow for departure where “[t]he offense was committed in order to prevent or avoid arrest, to impede or prevent prosecution for the conduct underlying the offense, or to effect an escape from custody.” § 921.0016(3)(o), Fla. Stat. (1995). Because the attempted aggravated assault was committed in Mills’ effort to escape or elude Officer Caridad following her forgery of the credit card receipt, section 921.0016(3)(o) properly applies to count I. However, it is clear that the forgery of the credit card receipt was not committed in an attempt to avoid arrest or prosecution.
Lastly, we affirm as to Mills’ contention that it was error for her trial counsel to practically concede guilt to the forgery of a credit card receipt offense without her record consent; however, this affirmance is without prejudice to Mills’ right to raise an ineffective assistance of counsel claim pursuant to a rule 3.850 motion. See Geddis v. State, 23 Fla. L. Weekly D1537 (Fla. 4th DCA June 24, 1998). We have examined the other issues raised by Mills and find no error. AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.
FARMER and GROSS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Mundell v. State, 739 So. 2d 1201 (Fla. 5th DCA 1999)…existent offense), citing Achin v. State, 436 So. 2d 30 (Fla.1982). The proper remedy is to remand for resentenc-ing on the offense of attempted aggravated assault, without use of the statutory enhancement factor. See Merritt, supra; Mills v. State, 714 So. 2d 1198 (Fla. 4th DCA 1998). AFFIRMED in part; REVERSED in part; and REMANDED. W. SHARP and GOSHORN, JJ., concur.…
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Grey v. State, 727 So. 2d 1063 (Fla. 4th DCA 1999)…argument.' Essentially, appellant is asserting a claim of ineffective assistance of counsel, which can be brought pursuant to Florida Rule of Criminal Procedure 3.850. See Geddis v. State, 715 So. 2d 991 (Fla. 4th DCA [*1066] 1998); Mills v. State, 714 So. 2d 1198 (Fla. 4th DCA 1998). AFFIRMED. POLEN, TAYLOR, JJ., and FRUSCIANTE, JOHN A., Associate Judge, concur.…
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Williams v. State, 724 So. 2d 705 (Fla. 4th DCA 1999)…PER CURIAM. AFFIRMED. See Mills v. State, 714 So. 2d 1198 (Fla. 4th DCA 1998). GUNTHER, SHAHOOD and TAYLOR, JJ., concur.…
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- Merritt v. State, 712 So. 2d 384 (Fla. 1998)