FLORIDA SENTENCING BLOG

A discussion of contemporary law, policy, and practice in Florida criminal sentencing.

The Criminal Punishment Code Scoresheet Explained

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Prosecutors, defense attorneys, and judges in Florida’s circuit courts rely heavily on scoresheets in the vast majority of their sentencing hearings.  Scoresheets are required by law in most felony sentencings.  A properly filled out, accurate and complete sentencing scoresheet helps to ensure just sentencing and is an important safeguard against sentencing error in circuit court.

Copyright 2013 Thomson Reuters and William H. Burgess, III. Further reproduction is prohibited.

By Hon. William H. Burgess, III, B.C.S.

The State of Florida has, for the past 30 years and through a succession of sentencing schemes involving the vast majority of criminal sentencings in circuit court, used printed scoresheets to collect and report sentencing data, to quantify sentencing factors, and to document sentences imposed.  Since October 1, 1998, the State has used the Rule 3.992(a) Criminal Punishment Code Scoresheet and the Rule 3.992(b) Criminal Punishment Code Supplemental Scoresheet, illustrated below.  This post presents a comprehensive explanation of the proper completion and utilization of the Criminal Punishment Code sentencing scoresheet.

Completing the Criminal Punishment Code Scoresheet1

The prosecutor (State Attorney or Statewide Prosecutor) is responsible for preparing a comprehensive criminal code scoresheet for each defendant covering all offenses pending before the court for sentencing. If there are multiple offenses before the court for sentencing and the felonies were committed under more than one version of the guidelines, the prosecutor is required to prepare and the court is required to use separate scoresheets in sentencing for all offenses applicable to each version of the law.  Single felony offenses before the sentencing court with continuing dates of enterprise must be sentenced under the guidelines or Criminal Punishment Code in effect at the beginning date of the criminal activity. The prosecutor must present the scoresheet to defense counsel to review for accuracy in all cases unless the court directs otherwise.2 Due to ethical considerations, defense attorneys can not be compelled to submit a scoresheet.

The great majority of felons who are sentenced in the State of Florida are sentenced under the Criminal Punishment Code.3 The focal point of Criminal Punishment Code sentencing is the scoresheet form,4 which represents the bottom line in sentencing a felon. Knowing how this form is prepared and used is essential to an understanding of the Criminal Punishment Code. It is also important to be able to distinguish Criminal Punishment Code sentencing from guidelines sentencing, and from other sentencing alternatives. Conversely, a lack of such knowledge can lead to misunderstanding that results in sentencing error, to the prejudice of the defendant, the State, or both.

Figure 1A.  Rule 3.992(a) Criminal Punishment Code Scoresheet (First Page).
Figure 1B.  Rule 3.992(a) Criminal Punishment Code Scoresheet (Second Page).
Figure 2.  Rule 3.992(b) Criminal Punishment Code Supplemental Scoresheet.

Offense severity ranking chart

The offense severity ranking chart found at section 921.0022(3), F.S. must be used with the Criminal Punishment Code scoresheet to compute a sentence score for each felony defendant whose offense was committed on or after October 1, 1998.5 The offense severity ranking chart has 10 offense levels, ranked from least severe, which are level 1 offenses, to most severe, which are level 10 offenses, and each felony offense is assigned to a level according to the severity of the offense. For purposes of determining which felony offenses are specifically listed in the offense severity ranking chart and which severity level has been assigned to each of these offenses, the numerical statutory references in the left column of the chart and the felony degree designations in the middle column of the chart are controlling; the language in the right column of the chart as it appears in the statute is provided solely for descriptive purposes. The legislature, arguably, thus does not consider the description of the offense to be a controlling factor in ranking the severity level of a given offense.6 Reclassification of the degree of the felony through the application of section 775.0845, section 775.0861, section 775.087, section 775.0875, section 794.023, or any other law that provides an enhanced penalty for a felony offense, to any offense listed in the offense severity ranking chart in section 921.0022(3), F.S. will not cause the offense to become unlisted and is not subject to the provisions of section 921.0023.7

Unranked offenses

Felony offenses not listed in section 921.0022, F.S., are assigned a severity level in accordance with section 921.0023, F.S., as follows: (a) a felony of the third degree within offense level 1; (b) a felony of the second degree within offense level 4; (c) a felony of the first degree within offense level 7; (d) a felony of the first degree punishable by life within offense level 9; and (e) a life felony within offense level 10.8 An offense does not become unlisted and subject to the provisions of section 921.0023, F.S., because of a reclassification of the degree of felony under sections 775.087775.0875, 794.023, F.S., or any other law that provides for a felony offense.9

Where the charging document filed by the State does not track the exact language in the offense severity ranking chart, such deviation does not render the charged offense as unranked; the offense severity ranking chart references the statute under which the defendant is charged and is not itself the statute under which the defendant is charged.10

Preliminary steps

Before attempting to complete a scoresheet, the prosecutor reviews the following basic sources of information:

1. Automated data on prior and current local offenses in the Criminal Justice Information Service (CJIS) or equivalent in use in the county in which the prosecutor is prosecuting the defendant. Before the prosecutor fills out the scoresheet, he or she checks for new charges that did not appear when he or she last checked. This can be especially important when scoring violations of probation and violations of community control.

2. The defendant’s rap sheet, which is a record of prior arrests compiled by the Florida Crime Information Center (FCIC), the National Crime Information Center (NCIC), and other law enforcement entities. The rap sheet includes a lot of useful information, including dispositions of the defendant’s arrested cases and statutes under which the defendant was charged when arrested. Note, however, that rap sheets sometimes contain errors and often additional verification must be done to ensure accuracy.

3. The defendant’s Florida Department of Highway Safety and Motor Vehicles (DHSMV) driving history printout and/or out-of-state driving record.  These are seldom used in non-driving-related cases, but can be used for a record of additional convictions that may increase the defendant’s total score.

4. If the defendant is on Department of Corrections probation or community control, or has been released from prison, the Department’s web page on the defendant, which lists the defendant’s prior record and sentences.

5. If the defendant is a veteran, his or her military discipline record, which may contain scoreable military convictions but which is ordinarily difficult to obtain.

Biographical and demographic data

1. Date of Sentence. The prosecutor does not make the entry until absolutely certain that sentence will in fact be imposed. Defendants often back out of changes of plea at the last minute and, more rarely, judges may put off sentencing to another day. Prosecutors or judges can also become aware of a new charge on the day set for sentencing, necessitating the gathering of more information before the scoresheet can be recalculated.

2. Preparer’s Name. The prosecutor typically puts down his or her first initial and last name.

3. County. This means the county where the sentence is imposed. Where there has been a change in venue, the name of the county that received the case should be entered here.

4. Sentencing Judge. The prosecutor enters the full name of the judge who imposed the sentence.

5. Name (Last, First, M.I.). In some counties, the defendant also has a more locally-assigned System Personal Number (SPN). The defendant may also have committed other crimes under an alias or aliases, which may also have their own SPNs or equivalent identification numbers. While it may be useful to a local prosecutor to include the defendant’s aliases and SPNs in this block for purposes of ensuring that the defendant’s entire criminal history is known and considered at sentencing, this is not required by the Department of Corrections.

6. Date of Birth.

7. DOC Number. This is a six-digit number assigned by the Department of Corrections. When the defendant has previously been sentenced to the Department of Corrections, this number may be found by prosecutors through a search of the Department of Corrections internet website. Prosecutors usually do not fill in this box because they do not know what the number is, and it is not necessary for sentencing to proceed.

8. Race (B, W, or Other). Black (B) refers to a person having origins in any of the black racial groups of Africa. White (W) means a person having origins in any of the original peoples of Europe, North Africa or the Middle East. Other refers to a person having origins in any of the original peoples of the Far East, Southeast Asia, Indian subcontinent, Pacific Islands, or any of the original peoples of the Americas, including Native Americans or Alaskan natives.11

  9. Gender (M or F).

10. Primary Offense Date. If the primary offense before the court for sentencing is a continuing offense, such as stalking, theft, or racketeering, the prosecutor uses the starting date for the offense.

11. Primary Docket Number. The felony court case number of the primary offense before the court for sentencing. Only one case number can be utilized as only one count of one case before the court for sentencing may be classified as the primary offense.

12. Plea or Trial. Did the defendant enter a change of plea, or was the defendant found guilty at trial? The prosecutor checks the box that applies. If, in cases where more than one case is resolved and the convictions are obtained by both plea and trial, the prosecutor checks the trial box.

Figure 3.  Biographical and demographic data.

Primary offense (Section I)

“Primary offense” means the offense at conviction pending before the court for sentencing, whether an open charge or a violation of community control or probation, for which the total sentence points recommend a sanction that is as severe as, or more severe than, the sanction for any other offense committed by the defendant and pending before the court for sentencing.12

Figure 4.  Primary offense.

Only one count of one offense before the court for sentencing can be classified as the primary offense.13 All other offenses, including multiple counts of the same offense scored as the primary offense, are to be listed as additional offenses. The primary may be an offense ranked at a lower severity level than other offenses before the court for sentencing due to the operation of multipliers for drug trafficking, grand theft motor vehicle (with the requisite prior record) violations of the Law Enforcement Protection Act, Gang, and Domestic Violence. If, for example, the defendant was on probation for a Level 5 Carrying a Concealed Firearm charge committed on or after October 1, 1998, and thereafter picked up a new Level 3 Possession of a Controlled Substance charge, the Level 5 VOP charge would be the defendant’s primary charge on the scoresheet. The prosecutor chooses the primary offense, and may elect to put the most egregious offense in the most prominent place on a scoresheet when there are multiple offenses of the same level before the court for sentencing.

Whenever a defendant is being sentenced for both a VOP and a new substantive offense, the VOP can be scored as either the primary offense or as an additional offense so long as it gives the most severe sanction. Likewise, the new substantive offense can be scored as the primary offense or as an additional offense provided the sentence results in the most severe sanction.14 When a defendant is before the court on both a new substantive offense and a violation of probation, the VOP must be scored as either the primary offense or as an additional offense, and not as “prior record.”15

The primary offense can not be a charge pending before another court. A scoresheet in one circuit cannot include open charges, VOPs, or violations of community control (VOCC) pending in another circuit unless the defendant agrees to a transfer of jurisdiction for sentencing. A case before an appellate court cannot be scored as a primary or additional offense (although such a case can be scored as prior record). Such matters are not “pending before the court for sentencing.” For example: Where a defendant is facing open felony animal cruelty charges in both Pinellas and Hillsborough counties, and is before the circuit court in Pinellas County for sentencing, the Hillsborough County charges cannot appear as either the primary or as additional offenses on Sections I and II of the Pinellas County scoresheet. Note, however, that if the offenses in Hillsborough County occurred prior in time to the Pinellas County charges, and the defendant is sentenced in Hillsborough County on those charges before appearing before the judge in Pinellas County for sentencing, those Hillsborough County charges may be scored as prior offenses in Section IV of the scoresheet (see below).

In completing Section I as to the primary offense, the prosecutor indicates with a check mark in the appropriate space any qualifier for that offense (Attempt, Solicitation, Conspiracy, or Reclassification) that applies. If none applies, the prosecutor leaves this portion of section I blank.

The prosecutor writes down the degree of felony, e.g., “3°F,” in the appropriate space. The prosecutor then inserts the applicable statute number, e.g., “817.568(2)(a),” which is found on the Information or Indictment. After the statute number, the prosecutor inserts the description (title) of the offense, e.g., “Fraudulent Use of Personal ID Information.” If the offense is a VOP, the prosecutor writes “- VOP” after the description; if a VOCC, the prosecutor writes “- VOCC.”

The prosecutor then inserts the offense level of the primary offense, e.g., “04” for a Level 4 offense. Felony offenses not listed in section 921.0022, F.S., are assigned a severity level in accordance with section 921.0023, F.S., as follows: (a) a felony of the third degree within offense level 1; (b) a felony of the second degree within offense level 4; (c) a felony of the first degree within offense level 7; (d) a felony of the first degree punishable by life within offense level 9; and (e) a life felony within offense level 10.16 An offense does not become unlisted and subject to the provisions of section 921.0023, F.S., because of a reclassification of the degree of felony under sections 775.087, 775.0875, 794.023, F.S., or any other law that provides for a felony offense.17 Where the charging document filed by the State does not track the exact language in the offense severity ranking chart, such deviation does not render the charged offense as unranked; the offense severity ranking chart references the statute under which the defendant is charged and is not itself the statute under which the defendant is charged.18 The severity of primary and additional offenses should be ranked in accordance with the offense severity ranking chart current at the time of the commission of such offense or offenses.19 The offense severity level cannot be modified by plea agreement.20

Primary offense (Section I) – Accessory after the fact

If the felony offense committed is a capital felony, the offense of accessory after the fact is a felony of the first degree, punishable as provided in section 775.082, section 775.083, or section 775.084.21 If the felony offense committed is a life felony or a felony of the first degree, the offense of accessory after the fact is a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.084.22 If the felony offense committed is a felony of the second degree or a felony of the third degree ranked in level 3, 4, 5, 6, 7, 8, 9, or 10 under section 921.0022 or section 921.0023, the offense of accessory after the fact is a felony of the third degree, punishable as provided in section 775.082, section 775.083, or section 775.084.23 If the felony offense committed is a felony of the third degree ranked in level 1 or level 2 under section 921.0022 or section 921.0023, the offense of accessory after the fact is a misdemeanor of the first degree, punishable as provided in section 775.082, section 775.083, or section 775.084.24

Except as otherwise provided in section 921.0022, for purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944, the offense of accessory after the fact is ranked two levels below the ranking under section 921.0022 or section 921.0023 of the felony offense committed.25

Primary offense (Section I) – Attempts, conspiracies, and solicitations

Unless specifically provided otherwise by statute, attempts, conspiracies, and solicitations must be indicated in the space provided on the Criminal Punishment Code scoresheet and must be scored at one severity level below the completed offense. Attempts, solicitations, and conspiracies of third-degree felonies located in offense severity levels 1 and 2 must be scored as misdemeanors. Attempts, solicitations, and conspiracies of third-degree felonies located in offense severity levels 3-10 must be scored as felonies one offense level beneath the incomplete or inchoate offense.26 An increase in offense severity level may result from a reclassification of felony degrees under sections 775.0845, 775.087, 775.0875, or 794.023. Any such increase must be indicated in the space provided on the Criminal Punishment Code scoresheet.27

Where a criminal attempt, solicitation, or conspiracy is separately ranked in section 921.0022, the severity level at which the inchoate offense is placed is the basis for scoring. Where the inchoate version of an offense is required to be punished as if the defendant had committed the prohibited act, it must be scored at the same level as the completed crime. Examples of crimes where the legislative intent is to punish the inchoate versions of an offense the same as the completed offense include conspiracy to commit drug trafficking under section 893.135 (5),28 conspiracy to commit bookmaking under section 849.25(4), and attempting, soliciting or conspiring to kill or commit aggravated abuse upon registered horses or cattle under section 828.125(2).

Rule 3.704(11) is further qualified by section 777.04(4), F.S., which provides as follows:

• Except as otherwise provided in sections 104.091(2), 379.2431(1), 828.125(2), 849.25(4), 893.135(5), and 921.0022, the offense of criminal attempt, criminal solicitation, or criminal conspiracy is ranked for purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944 one level below the ranking under section 921.0022 or section 921.0023 of the offense attempted, solicited, or conspired to. If the criminal attempt, criminal solicitation, or criminal conspiracy is of an offense ranked in level 1 or level 2 under section 921.0022 or section 921.0023, such offense is a misdemeanor of the first degree, punishable as provided in section 775.082 or section 775.083.29

• If the offense attempted, solicited, or conspired to is a capital felony, the offense of criminal attempt, criminal solicitation, or criminal conspiracy is a felony of the first degree, punishable as provided in section 775.082, section 775.083, or section 775.084.30

• Except as otherwise provided in section 893.135(5), if the offense attempted, solicited, or conspired to is a life felony or a felony of the first degree, the offense of criminal attempt, criminal solicitation, or criminal conspiracy is a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.084.31

• Except as otherwise provided in section 104.091(2), section 379.2431(1), section 828.125(2), or section 849.25(4), if the offense attempted, solicited, or conspired to is a:

1. Felony of the second degree;

2. Burglary that is a felony of the third degree; or

3. Felony of the third degree ranked in level 3-10 under section 921.0022 or section 921.0023,

the offense of criminal attempt, criminal solicitation, or criminal conspiracy is a felony of the third degree, punishable as provided in section 775.082, section 775.083, or section 775.084.32

• Except as otherwise provided in section 104.091(2), section 379.2431(1), section 849.25(4), or section 777.04(4)(d), if the offense attempted, solicited, or conspired to is a felony of the third degree, the offense of criminal attempt, criminal solicitation, or criminal conspiracy is a misdemeanor of the first degree, punishable as provided in section 775.082 or section 775.083.33

• Except as otherwise provided in section 104.091(2), if the offense attempted, solicited, or conspired to is a misdemeanor of the first or second degree, the offense of criminal attempt, criminal solicitation, or criminal conspiracy is a misdemeanor of the second degree, punishable as provided in section 775.082 or section 775.083.34

The prosecutor then inserts in the assigned space the points assigned to the level of offense for the primary offense.

Primary offense (Section I)– Prior capital felony points (primary offense)

If the defendant has one or more capital felonies in his or her criminal record the points for the primary offense are tripled.35 E.g., if the score of the primary offense, standing alone, is 22, the prior capital felony triples the score to 66. The prosecutor indicates the existence of the prior capital felony by checking the indicated block appearing at the bottom of Section I. A prior capital felony in the defendant’s criminal record is a previous capital felony for which the defendant has entered a plea of nolo contendere or guilty or has been found guilty; or a felony in another jurisdiction which is a capital felony in that jurisdiction, or would be a capital felony if the offense was committed in Florida.36 The prosecutor indicates the existence of the prior capital felony by checking the indicated block appearing at the bottom of Section II. Prior capital felonies are not scored in the prior record section of the scoresheet.37 Under the Criminal Punishment Code, the court can use the prior capital felony multiplier when a capital offense that was committed prior to the primary non-capital offense is sentenced at the same time as the non-capital offense.38

Capital felonies are punishable under section 775.082, F.S., which provides for punishment by death or life imprisonment without parole.39 There is a difference, however, between a capital felony in name and a capital felony in fact. The Florida Supreme Court has defined a capital felony to be one where the maximum possible punishment is death.40 Presently, the only such crime in the State of Florida is first-degree murder, premeditated or felony.41 For example, although sexual battery by a person 18 years or older upon a person less than 12 years of age commits a “capital felony” pursuant to section 794.011, F.S., it is not punishable by death42 and so is no longer a capital felony in fact and may be regarded as a felony “punishable by life,” even though the “capital” designation remains. The Florida Supreme Court has thus drawn a distinction between “capital crimes” for which the death penalty remains applicable and “capital felonies” which are not subject to the death penalty but which are still considered capital offenses for purposes of sentencing multipliers. This means that a prior conviction for capital sexual battery, although not punishable by death, can be used as a prior capital felony multiplier on the scoresheet.43

Capital felonies are, in any event, not subject to the Criminal Punishment Code and the earlier sentencing guidelines and cannot be considered as primary, additional, or prior record offenses in calculating a defendant’s minimum or maximum sentence on a scoresheet.44

Additional offenses (Section II)

“Additional offense” means any offense other than the primary offense for which the defendant is convicted and which is pending before the court for sentencing at the time of the primary offense.45 For each additional offense before the court for sentencing, whether open charge, VOP, or VOCC, the prosecutor puts down the docket (case) number, degree of felony or misdemeanor, statute number, offense level, qualifier (if any), counts, points (by multiplying the points assigned the offense level by the number of counts), total, and description of the offense. This is filled out, as to each additional offense, as with the primary offense in Section I, except that the points assigned to the offense levels are smaller. If the additional offense is a misdemeanor, the prosecutor does not have to write down whether it is a first or second degree misdemeanor; he or she merely has to put “M” or “MM” in the space provided for degree of offense. The total number of points for this section is entered in the indicated space next to the Roman numeral “II” at the right margin of this section.

Figure 5.  Additional offenses.

Regardless of when a prior offense was committed or the date of the conviction of that offense, the offense severity level of each prior offense is scored at the level for that offense on the offense severity ranking chart current at the time of sentencing if it is a ranked offense, or at the current offense severity level of unranked offenses of the same degree if such prior offense is unranked. This is so even where the offense severity level of the prior offense as scored is higher than when the prior offense was committed, and does not run afoul of ex post facto considerations.46 Note that this is so under Rule 3.704(d)(14) for the Criminal Punishment Code, and under Rules 3.703(d)(15) and Rule 3.702(d)(8) for the 1995 and 1994 Sentencing Guidelines, because these rules address severity level in the present tense, but not under Rule 3.701(d)(5)(B) of the original Guidelines, which requires scoring at the level of the analogous or parallel Florida statute in existence at the time of the commission of the prior offense.47 Thus, while under the original Guidelines prior record offenses had to be scored at the same degree classification level as they were at the time of the convictions for those offenses, under the 1994 and 1995 Guidelines and the Criminal Punishment Code such offenses are classified at the levels current for the scoresheet used at sentencing, regardless of any legislative increase or decrease in classification level in the interim.48

Where a defendant violates probation with the commission of a new felony offense that is before the same court for sentencing as the violation, the rules of procedure do not require the new substantive offense or the underlying criminal offense be scored in any particular manner, provided that the combination results in the most severe sanction. The violation of probation can be scored as either the primary offense or as a prior record, so long as it gives the most severe sanction. Likewise, the new substantive offense can be scored as the primary offense or as an additional offense, provided the sentence results in the most severe sanction.49

When a defendant is to be sentenced upon revocation of probation or community control and prior to that revocation the trial court’s jurisdiction over one or more of the originally sentenced offenses has expired, the offenses over which the trial court no longer has jurisdiction may not be scored as additional offenses.50

Additional offenses (Section II) – Prior capital felony points (additional offense)

If the defendant has one or more capital felonies in his or her criminal record the points for the additional offenses are tripled.51 E.g., if the score of additional offenses is 7.2, the prior capital felony triples the score to 21.6.

Victim injury (Section III)

“Victim injury” means the physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for which a defendant is convicted and which is pending before the court at the time of the primary offense.52 Victim injury is scored for physical injury or death suffered by a person as a direct result of any offense pending before the court for sentencing. Misdemeanor convictions are properly used as “additional offenses” in the same manner as any felony to score victim injury points.53 Victim injury points are assessed in the sound discretion of the trial court,54 and will withstand review if there is evidence in the record to support the court’s finding in this regard.55

Figure 6.  Victim injury.


Victim injury points are added to a scoresheet to increase the sentencing minimums within a felony level. By adding victim injury points, a longer period of incarceration can be expected, because the lowest permissible sentence is elevated. To ensure that the seriousness of a crime is recognized, the legislature has required that victim injury points be added to the Criminal Punishment Code scoresheet of a defendant even where injury to or death of the victim is factored into the offense level, and even where injury or death is an element of the crime before the court for sentencing.56 All that is required is a causal nexus between the offense and the victim’s injury or death.57 Victim injury points may not be assessed where the charging instrument does not accuse the defendant of a crime against the victim’s person.58 Where the victim injury which is the basis for the assessment of sentencing points is not an element or the functional equivalent of an element of the offense and thus not part of the essential facts constituting the offense charged, the victim injury need not be alleged in the information.59

Stated otherwise, victim injury does not have to be an element of one of the offenses for which the defendant is convicted for victim injury points to be assessed. There does, however, have to be a nexus between the commission of the offense and the injury of the victim for the points to be properly assessed. Victim injury points may not be assessed where the cause of the victim’s death preceded the underlying offense.60 Where, for example, the defendant strikes a pedestrian with his or her motor vehicle and then flees the scene, and the defendant is subsequently charged with misdemeanor reckless driving and felony leaving the scene of a crash with injury, victim injury points may be assessed for the reckless driving if that offense appears on the same scoresheet as the leaving the scene of a crash offense. Victim injury points may not be assessed if the only offense on the scoresheet is the leaving the scene of a crash offense and there is no causal nexus to victim injury. If, however, the defendant caused victim injury in the course of leaving the scene of the crash, e.g., by dragging the victim with or her motor vehicle or causing the victim to fall or be propelled onto the roadway where the victim is injured by another motor vehicle, victim injury points may be assessed.61

It is apparent that the term “victim” refers to a person other than the defendant when it comes to the assessment of victim injury points. Self-infliction of injury is not criminal in and of itself, and so the assessment of injury points against a defendant who injures only himself or herself in the perpetration of an offense, in the absence of a statutory provision providing otherwise, would appear to be without logical or legal foundation. It would also appear to be contrary to the basic notions of criminal punishment that victims are not punished for being injured and that a criminal defendant cannot be his or her own victim.62 An example of a situation of this kind in which victim injury points could not be assessed, causal nexus notwithstanding, would be where a convicted felon accidentally shoots himself or herself while physically taking possession of a firearm and is subsequently charged with felonious possession of a firearm.

Victim injury must be scored for each victim physically injured and for each offense resulting in physical injury whether there are one or more victims63 The trial court is required to assess victim injury points for each offense, even though the offense involves a single victim,64 or occurred during the same transaction or episode,65 but victim injury points may not be assessed for each offense for which the defendant is convicted where only one injury occurs.66 This does not mean that victim injury points may be assessed for each discreet injury inflicted by the defendant, regardless of the number of offenses before the court for sentencing, and so a defendant charged with aggravated battery with a firearm for shooting the victim multiple times cannot be assessed separate victim injury points for each of the gunshot wounds suffered by the victim.67 Where the defendant is charged as a principal, victim injury points may be assessed for multiple perpetrators.68 Multiple assessments of the same level of victim injury may be scored by multiplying the appropriate level of injury by the number of counts scoreable. The trial judge may not assess victim injury or death points for a crime the jury has acquitted the defendant of, in the absence of a necessary conclusion of the jury as to the extent of injury.69 Absent a necessary conclusion of the jury as to victim injury, victim injury points assessed by the judge may not be used to increase the defendant’s sentence beyond the relevant statutory maximum, unless the defendant waives his or her Apprendi rights and agrees to judicial fact finding.70 There is also some support for the proposition that victim injury points may not be assessed, in any event, absent a jury finding or a waiver of Apprendi rights.71

Where alternative theories of the offense are presented to the jury, a general verdict is insufficient to support a finding that allows enhancement.72 A jury’s conviction can, in certain situations, represent a sufficient jury finding to authorize a death/injury points sentence enhancement beyond the statutory maximum without that issue being explicitly submitted to the jury and found by the jury to have been proven beyond a reasonable doubt before the trial court can assess those points.73 The trial court may also impose such an enhancement beyond the statutory maximum where the defendant does not go to trial but enters a plea and admits the facts as presented to the court at the sentencing hearing, Apprendi notwithstanding.74

Note that there is currently a conflict between the First and Second District Courts of Appeal on the matter of whether or not a defendant can contest the inclusion of sentencing points, including victim injury points, on resentencing after a violation of probation or community control. The position of the Second District is that a defendant may challenge the inclusion of victim injury points at a revocation proceeding even when those points were not challenged at the original sentencing or on direct appeal, and that this is so even where the defendant pleads pursuant to a negotiated plea if he or she did not specifically agree to the inclusion of the points on the scoresheet.75 The First District, on the other hand, has taken the position that an appeal from resentencing following violation of probation is not the proper time to assert an error in the original scoresheet.76 A related issue that often comes up on appeal is whether victim injury points that were assessed by the original sentencing court absent a specific jury finding can be reassessed by the court on resentencing in light of Apprendi. The Second, Third, Fourth, and Fifth District Courts of Appeal hold that Apprendi and Blakely do not apply to cases when the conviction became final before Apprendi was decided, even though resentencing occurs post-Apprendi due to a sentencing error. Even if Apprendi does apply, the resentencing court must perform a harmless error analysis.77 Under a harmless error analysis, the court must determine if the record “demonstrates beyond a reasonable doubt that a rational jury” would have found victim injury.78

Victim injury (Section III) – Sexual penetration and sexual contact

Except as otherwise provided by law,79 the sexual penetration and sexual contact points are scored as follows: Sexual penetration points (80) are scored if an offense pending before the court for sentencing involves sexual penetration. Sexual contact points (40) are scored if an offense pending before the court involves sexual contact, but no penetration.80

Statutory exceptions to the assessment of sexual penetration and sexual contact points contained in section 921.0021, F.S. are as follows:

(1) The sentence points provided under section 921.0024 for sexual contact or sexual penetration may not be assessed for a violation of section 944.35(3)(b)2., involving sexual misconduct short of the crime of sexual battery on the part of a Department of Corrections employee with an inmate or an offender supervised by the Department of Corrections in the community.81 Note that an anomaly in the law is that there is no comparable ban on the assessment of sexual contact and sexual penetration points for violations of a comparable statute, section 951.221(1), F.S., pertaining to sexual misconduct short of sexual battery by employees of county or municipal detention facilities or private detention facilities under contract with a county commission, with an inmate or offender supervised by the facility.82

(2) If the conviction is for the offense described in section 872.06, pertaining to sexual abuse of a dead human body, the sentence points provided under section 921.0024 for sexual contact or sexual penetration may not be assessed.83

There is no statutory definition of “sexual contact,” but that term has been judicially interpreted in a variety of contexts: Sexual contact victim injury points are not limited to acts involving a union of the sexual organ of one person with the oral, anal or vaginal openings of another, but can include almost all manner of erotic touching including but not limited to penetration.84 A completed act of fellatio, however, is scored as sexual penetration and not sexual contact.85 Where a defendant has been charged with sexual battery and evidence of sexual contact is presented during the trial, sexual contact points may also be assessed upon a verdict of attempted sexual battery.86

If the victim of an offense involving sexual penetration or sexual contact without penetration suffers any physical injury as a direct result of an offense pending before the court for sentencing, that physical injury must be scored separately and in addition to any points scored for the sexual penetration or sexual contact.

When charged as a principal, a defendant can be assessed sexual penetration points even though someone other than the defendant engaged in the penetration.87 Victim injury points for sexual penetration may not be assessed against a defendant who is not charged, or cannot be charged, as a principal and did not engage in the sexual penetration himself or herself.88

Note that, in the absence of an admission by the defendant, where the charging document alleges “penetration” or “union,” the verdict form must specify which alternative is the basis for any finding of guilt in order for points for either to be assessed where the assessment of those points increases the penalty beyond the prescribed statutory maximum.89

Victim injury (Section III) – Death of the victim

If the offense at conviction is second degree murder, 240 points are assessed for the death. All other deaths receive 120 points as victim injury.90 If, however, the charging document alleges that the defendant caused the death of one named individual or another in the alternative (e.g., “J.R. Brown or Ruth Ann Brown”), it is error for the court to assess death points for both at sentencing upon conviction absent a jury finding of two deaths.91 Death points may not be assessed where the defendant has been acquitted of all murder or manslaughter charges and is convicted of the lesser-included charge of aggravated battery.92 Victim injury points for death can be scored, however, for the crime of leaving the scene of an accident causing death, even though death is not an element of the crime.93

Victim injury (Section III) – Injury resulting from capital offenses

Victim injury resulting from one or more capital offenses before the court for sentencing must not be included upon any scoresheet prepared for non-capital offenses also pending before the court for sentencing.94 This does not prohibit the scoring of victim injury as a result of the non-capital offense or offenses before the court for sentencing.

The total number of points for this section are entered by the prosecutor in the space provided next to the Roman numeral III at the right margin of this section. Note that victim injury points erroneously omitted from the initial sentencing scoresheet may be added on the VOP or VOCC scoresheet even if the original sentence, without victim injury points, was the result of a plea agreement.95

Victim injury (Section III) – Severe, moderate, and slight injury

Sections 921.0021(7) and 921.0024, and Fla. R. Crim. P. 3.704(d)(9), provide for different amounts of victim injury points to be assessed depending on whether the injury is severe, moderate or slight. Forty points are assessed for “severe” injury, eighteen points for “moderate” injury, and four points for “slight” injury. None of these levels is defined in either the statutes or the rule, necessitating a case-by-case determination by the sentencing court.

Courts have analogized severe injury it to “great bodily harm.”96 A conviction for driving under the influence with serious bodily injury under section 316.193(3)(c)2., or aggravated battery causing great bodily harm under section 784.045(1)(a)1. would, therefore, support an assessment of 40 points on the defendant’s scoresheet for severe injury.97 Great bodily harm in the context of aggravated battery defines itself and means great as distinguished from slight, trivial, minor, or moderate harm, and as such does not include mere bruises as are likely to be inflicted in a simple assault and battery.98 Evidence that the victim received a broken nose, had one eye completely shut, a broken lip and who was taken to the hospital by ambulance for emergency room treatment is sufficient to satisfy the essential statutory elements of the offense of aggravated battery which are great bodily harm, permanent disability or permanent disfigurement.99 Whether aggravated battery is committed when the injury inflicted does not break the skin, does not injure the bones and does not leave disfigurement or permanent injury of any kind, is a question of fact to be determined by the judge or jury. Although it can be argued that all permanent injury constitutes great bodily harm, it does not follow that all great bodily harm consists of permanent injury. Indeed, many serious bodily injuries leave no lasting effect on the health, strength, and comfort of the injured person, and so there is apparently no requirement that the harm result in permanent injury.100

It would logically follow, therefore, that a conviction for aggravated battery causing permanent disability or permanent disfigurement under section 784.045(1)(a)1. would also support the assessment of forty points for severe injury.101 “Permanent disability” is not defined by statute or rule, but has been defined elsewhere as “incapacity forever from returning to work formerly performed before the accident, though this capacity may be either total or partial.102 “Disfigurement” is not defined in the statute or rule, but has been defined elsewhere as that which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, misshapen or imperfect, or deforms in some manner.103 There must, therefore, be an outward observable scar or mutilation which tends to mar the appearance of a part of the body which is normally exposed.104 As such, an observable permanent scar may be sufficient for the assessment of points for severe injury, as determined by the trier of fact.105 As a general rule, gunshot injuries are scored as severe injury.106

Courts have historically been unable to draw a bright line between moderate injury and slight injury. An example of moderate injury would be where the injured victim has to be on light duty for three months, wear an ankle brace, and regularly attend physical therapy and doctors appointments.107 Minor cuts, bruises, and bumps would fall into this category. Slight injury occurs where, for example, the victim does not undergo medical treatment or lose income.108

Prior record (Section IV)

“Prior record” means a conviction for a crime committed by the defendant, as an adult or a juvenile, prior to the time of the primary offense and includes “federal, out of state, military, or foreign courts and for violations of county or municipal ordinances that incorporate by reference a penalty under state law.”109 A “conviction” is a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld.110 To be scored as “prior record” only the past conduct must occur before the commission of the primary offense; offenses occurring prior to the primary offense for which convictions are obtained between the commission of the primary offense and the sentencing for that offense are scored as part of the prior record.111 Scoring offenses which occur after the primary offense as prior record is improper, and it does not matter that the defendant is convicted and sentenced for such an offense before being sentenced on the primary offense.112

Stated otherwise, this section is reserved for offenses occurring prior in time to the primary offense for which the defendant has been convicted and has either completed his or her sentence or is on probation in another jurisdiction (e.g., federal probation or misdemeanor probation in county court) and are not before the state circuit court for sentencing. It is filled out in the same manner as Sections I and II in terms of how the data is entered, except that no docket numbers are required. Also, where the defendant’s priors include misdemeanors, it is not necessary that each and every misdemeanor be separately listed: It is sufficient to simply put “M” or “MM” on the offense degree line, “Various” on the statute line,” “M” or “MM” on the offense level line, “Misdemeanors” on the offense description line, list the total number of misdemeanors in the space provided, put “.02″ on the points line, multiply the total number of misdemeanors by .02, and enter the total on the line provided.

Figure 7.  Prior record.

A court may not consider pending charges not before the court for sentencing in imposing sentence for a charge, or charges, before the court.113 A trial court can, however, consider a defendant’s prior arrests not leading to convictions for purposes of sentencing so long as the court recognizes that these arrests are not convictions or findings of guilt, and the defendant is given an opportunity to explain or offer evidence on the issue of his or her prior arrests.114

On occasion, a defendant will be before the court for sentencing, or resentencing, for offenses that were committed on different dates and which fall into one or more sentencing schemes. An example would be where a defendant is before the court for resentencing for two offenses, one an offense that was committed on September 30, 1998 and the other an offense that was committed on or after October 1, 1998, both of which were charged in the same information and both of which the defendant was convicted of in the same trial. At sentencing, the first offense would be scored on a 1995 guidelines scoresheet, and the second would be scored on a Criminal Punishment Code scoresheet.

An issue that arises is whether or not the offense committed on September 30, 1998, can be listed as “prior record” on the Criminal Punishment Code scoresheet. The issue is further compounded where the earlier offense is a continuing one, and the dates of commission extend to and past the date or dates of the later offense: Sections 921.0011(5) (now repealed) and 921.0021(5), and Fla. R. Crim. P. 3.701(d)(5), 3.702(d)(18), 3.703(d)(15) and 3.704(d)(14) define prior record in terms of any conviction for an offense committed prior to the commission of the primary offense; Fla. R. Crim. P. 3.703(d)(15), however, excludes “any additional offenses before the court for sentencing.” The issue is even further compounded where the defendant was originally convicted in the same proceeding of multiple offenses with varying dates of commission and the defendant is remanded for resentencing after appeal for only some of those offenses, where the convictions left standing are for offenses that were committed prior to the offenses for which the defendant is to be resentenced.

An example of how Fla. R. Crim. P. 3.703 (d)(15) works in this regard is the case of Jose Antonio Colon:115 On January 28, 1999, Colon was found guilty of three counts of sexual activity with a child, five counts of lewd act upon a child, one count of lewd act in the presence of a child, two counts of sexual battery, and one count of attempted sexual battery. On March 5, 1999, Colon was sentenced on all counts. On September 24, 2003, the trial court granted Colon’s motion for postconviction relief pursuant to Heggs.116 Colon was resentenced on February 20, 2004, nunc pro tunc to March 5, 1999. Because capital offenses are not subject to the sentencing guidelines or the Criminal Punishment Code, the life sentences imposed for the two capital sexual batteries were not disturbed. Due to their respective dates of occurrence, some of the remaining counts were scored on a 1995 scoresheet. On the 1995 scoresheet, the trial court tripled the primary offense points based upon the capital offenses, which were not subject to rescoring, and which had been committed during the time period covered by Colon’s 1994 scoresheet.

On appeal, the Fifth District Court of Appeal ruled that it was inappropriate to utilize the prior capital felony multiplier because the two capital felonies committed by Colon were not “prior” offenses pursuant to Fla. R. Crim. P. 3.703(d)(15) in that they were pending before the court for sentencing at the same time as the offenses on the 1995 scoresheet. The appellate court concluded that the only reason the 1995 scoresheet had to be recalculated was because the Heggs-eligible offenses had to be removed and recalculated under a 1994 scoresheet; based on the recalculated 1995 scoresheet, the corrected sentence was imposed on Colon nunc pro tunc to his original sentencing date of March 5, 1999. The Fifth District found the significance of this to be that the date and time of the sentences and convictions for the offenses scored on the recalculated 1995 scoresheet and the capital felony offenses remained March 5, 1999, making them pending before the court for sentencing at the same time and thereby triggering the exclusionary provision of Fla. R. Crim. P. 3.703 (d)(15). Implicit in the Colon opinion is that a different result would have issued had sentencing been pursuant to a rule that did not have the unique exclusionary provision of Fla. R. Crim. P. 3.703(d)(15), or if the sentencing court had bifurcated sentencing and sentenced Colon on the capital offenses first and then held a separate sentencing for the offenses scored on the 1995 guidelines scoresheet.

Whenever the fact of a prior conviction is to be used, whether to be used as a prior conviction for a scoresheet or as a predicate offense for reclassification of charge or enhancement of penalty, the burden is on the State to connect the defendant to the underlying conviction.117 While in most cases the defendant will stipulate to the fact of a prior conviction, there are occasions when the State is held to its burden.

In meeting this burden, the State must only prove that the defendant and the person so convicted are one and the same person by the preponderance of the evidence, and it may do so through any competent evidence. The defendant may then offer evidence to rebut the State’s proof. The State cannot compel, and the court cannot order, the defendant to reveal prior convictions.118 The most common procedure followed in those situations is to have the defendant printed in the courtroom, then have a qualified latent print examiner compare those prints with the prints that accompany the certified judgement and sentence for the prior conviction, and to have the print examiner testify under oath as to whether or not the prints taken from the defendant match those of the judgment and sentence.

Certified judgments and sentences and expert fingerprint comparison testimony is not essential for proof of prior record at sentencing, unless the prior record is to be used for enhancement or reclassification. Absent a stipulation from the defendant, however, the evidence must be competent and sufficient. E.g., without the sworn testimony at the sentencing hearing by a fingerprint analyst, analyses of the fingerprints of a defendant are hearsay and inadmissible to prove the prior convictions are the defendant’s.119 An affidavit from a prison records custodian attesting that a person of the same name and birth date was released from incarceration for a certain case number out of a certain jurisdiction, in the absence of fingerprints or photographic evidence, does not constitute proof of the defendant’s conviction or release date.120 Appellate courts have approved identification for sentencing purposes based upon a photograph of the defendant, rather than fingerprints,121 but the courts have never approved a finding that evidence of the same name and birth date constitutes proof of the defendant’s conviction or release status. While Stabile v. State122 approved a prison records custodian’s affidavit attesting to the defendant’s prison release date as admissible under the business records exception to the hearsay rule, section 90.803(6), F.S., the State also connected the defendant to that conviction through testimony of a deputy sheriff who fingerprinted the defendant for the conviction on which the prison release information was provided.

Sometimes, due to error, accident, inadequate record keeping or routine destruction of records, the judgment and sentence and/or fingerprints from the prior conviction cannot be obtained. In such unusual circumstances, it is permissible for the State to have the court take judicial notice of court records indicating that a certain named defendant was convicted on a certain date in a certain case for a certain offense and to summon any competent witness to the conviction, including the defendant’s counsel at conviction, to identify the defendant as the person who was so convicted on that certain date in that certain case. Use of former defense counsel is permissible because identity of a client is not privileged123 and a conviction on the record and in open court, either by plea or through jury verdict is not a confidential communication not intended to be disclosed to third parties.124 This is comparable to the State’s presentation, in the trial of the defendant for failure to appear, of testimony of the defendant’s former counsel regarding former counsel’s communication of trial dates to the defendant.125

Not all prior convictions can be scored, however. Absent waiver of counsel on the record at the time of the prior conviction, a timely written order from the judge who sentenced the defendant for that prior conviction that he or she would never be incarcerated as a result of that conviction, or a stipulation from the defense at the time of sentencing on the open charge or charges, the State may not use uncounselled prior convictions on the scoresheet.126 Presuming waiver of counsel from silent record is impermissible.127 The defendant bears the initial burden of showing entitlement to counsel because “the key is that an uncounselled conviction may not be used for enhancement if the defendant in fact had a right to counsel in the prior proceedings.”128 In order to meet this initial burden, the defendant must assert under oath: (1) that the offense involved was punishable by more than six months of imprisonment or that the defendant was actually subjected to a term of imprisonment; (2) that the defendant was indigent and, thus, entitled to court-appointed counsel; (3) counsel was not appointed; and (4) the right to counsel was not waived. If the defendant sets forth these facts under oath, then the burden shifts to the State to show either that counsel was provided or that the right to counsel was validly waived. A defendant’s statement under oath that he or she was neither provided nor offered counsel at the proceedings resulting in prior convictions is not sufficient to put the State to the burden of proving that such convictions were in fact counseled or that counsel was knowingly waived, and under such conditions the prior convictions may be scored.129

Regardless of when a prior record offense was committed or the date of conviction of that offense, the offense severity level of each such prior offense is scored at the level reflected for that offense on the current offense severity ranking chart for if it is a ranked offense, or at the current offense severity level of unranked offenses of the same degree if such prior offense is unranked. This is so even where, through the offense severity level of the prior offense as scored is higher than when the prior offense was committed, and such does not run afoul of ex post facto considerations.130 Note that this is so under Rule 3.704(d)(14) for the Criminal Punishment Code, and under Rules 3.703(d)(15) and 3.702(d) (8) for the 1994 and 1995 Sentencing Guidelines, because those rules address severity level in the present tense, but not under Rule 3.701(d)(5)(B) of the original Guidelines, which requires scoring at the level of the analogous or parallel Florida statute in existence at the time of the commission of the prior offense.131 Thus, while under the original Guidelines prior record offenses had to be scored at the same degree classification level as they were at the time of the convictions of these offenses, under the 1994 and 1995 Guidelines and the Criminal Punishment Code such prior offenses are classified at the levels current for the scoresheet used at sentencing, regardless of any legislative increase or decrease in classification level in the interim.132

Prior record (Section IV) – Convictions on appeal

It is proper to include a conviction still on appeal as part of the defendant’s prior record.133 When a prior offense which is under appeal is included on the scoresheet as prior record, and the prior offense is reversed on appeal, the sentence imposed should be reversed unless the record conclusively shows that the court would have imposed the same sentence without considering the reverse conviction.134

Prior record (Section IV) – Convictions for offenses more than 10 years old

Convictions for offenses committed by the defendant more than 10 years before the
primary offense are not included in the defendant’s prior record if the defendant has not been convicted of any other crime for a period of 10 consecutive years from the most recent date of release from confinement, supervision, or sanction, whichever is later, to the date of the primary offense.135 This is an all-or-nothing” proposition: None of the prior record may be scored if the defendant remains conviction-free for the requisite 10-year period leading up to the date of commission of the primary offense, but all of it, without exception, must be scored if the defendant has not. Although the rule and corresponding statute are quite clear in this regard, one source of confusion on this point has been the mistaken belief that the prosecutor cannot score any convictions that were entered prior to any apparent 10-year gap in the defendant’s criminal history, and thus any such gap immunizes the defendant against the use of those prior convictions. The 10-year period referred to in the rule is calculated backward from the date of the primary offense: If during that period the defendant has maintained a conviction-free and criminal sanction free record, then no part of his prior record is calculated. If, on the other hand, the defendant has suffered a conviction during that 10 year period, then all of his adult prior record is calculated, and the fact that more than 10 years elapsed between one conviction and another outside that 10-year period is of no moment.136 Each conviction-free interval of ten years and a day does not wipe the slate clean so that an offender may commence a new course of criminal conduct: The passage of time provision wipes the slate clean for the instant offense only if more than ten years has elapsed since the offender was last in trouble.137 A trial court commits reversible error if it disregards any part of the prior record of a defendant who has not remained conviction-free for ten years and imposes what would be a downward departure if that portion of the defendant’s prior record was counted, and the State does not agree to such a departure sentence.138

Prior record (Section IV) – Juvenile dispositions

Juvenile dispositions (adjudications of delinquency and withholds of adjudication) of offenses committed within five years before the date of the primary offense are included in the defendant’s prior record when the offense would have been a crime had the defendant been an adult rather than a juvenile. Juvenile dispositions of sexual offenses committed by the defendant five or more years before the primary offense are included in the defendant’s prior record if the defendant has not maintained a conviction-free record, either as an adult or a juvenile, for a period of five consecutive years from the most recent date of release from confinement, supervision, or sanction, whichever is later, to the date of the primary offense.139 The date the offense was committed, not the disposition of that offense, is the triggering date for purposes of inclusion as prior record.140

The inclusion of juvenile prior dispositions on a scoresheet pursuant to Fla.Crim.Pro. 3.704(d)(14)(B) and, by implication, section 921.0021(5), F.S., and, by further implication, the predecessor rules and statutes, does not violate the holdings in Apprendi v. New Jersey, 141 and Ring v. Arizona.142 In Apprendi the Supreme Court held that all findings that increase the maximum sentence that can be imposed on a defendant must be found by the jury.143 The Court also stated that the use of prior convictions was an exception to the general rule requiring a jury finding.144 Juvenile dispositions fall under this exception for prior convictions.

In 2001 in the Ninth Circuit, the majority in United States v. Tighe held that because juveniles were not afforded trials by jury, dispositions resulting from those proceedings are not prior convictions as envisioned by the Supreme Court in crafting the exception to the requirement of jury findings in Apprendi.145 However, the dissent of Judge Brunetti argued that where the juvenile proceeding complied with all necessary constitutional requirements, the lack of a jury was not determinative for the purposes of the Apprendi prior conviction exception.146 Most subsequent courts which have addressed this issue have agreed with Judge Brunetti’s dissent and have rejected the Tighe majority’s narrow formulation of the Apprendi prior conviction exception.147 Following rulings by the Third and Eighth Circuits which rejected the holding and reasoning of Tighe, the Eleventh Circuit held that “a prior nonjury juvenile adjudication that was afforded all constitutionally-required procedural safeguards can properly be characterized as a prior conviction for Apprendi purposes.”148 The First District Court of Appeal has expressed its agreement with the rationale of the Third, Eighth and Eleventh Circuit decisions and held that a defendant’s prior juvenile dispositions are constitutionally sound, and their inclusion in a scoresheet is correct.149

Prior record (Section IV) – Federal, out of state, military, or foreign convictions

In order to score a prior conviction from a foreign jurisdiction as a prior record, the trial court must determine whether the conviction is analogous to conviction for a crime in Florida. Only the elements of an out-of-state crime, and not the underlying facts, should be considered in determining whether a conviction is analogous to a Florida statute for the purpose of calculating points for a sentencing guidelines or CPC scoresheet.150 The trial court may consider the charging document and the final disposition in determining the elements of the prior offense.151 The trial court is not allowed to consider facts from the trial to make a determination of whether the out-of-state crime has an equivalent in Florida.152

The phrase, “underlying facts,” has been interpreted to mean, for example, police reports, testimony, or other evidence in the case, how much was stolen (in a theft case), or the like.153

Federal, out of state, military or foreign prior convictions must also be compared with offenses that were prohibited under Florida law at the time those prior offenses were committed, and not with offenses prohibited under Florida law at the time of sentencing.154 Convictions for offenses that were not crimes in Florida at the times of their commissions can not be scored as prior record. A prior conviction under the Uniform Code of Military Justice for being Absent Without Leave (AWOL), for which there is no counterpart under Florida penal law, would be an example,155 except where the defendant was a member of the Florida National Guard at the time he or she committed the offense.156 Foreign convictions arising from legal systems that operate in a manner that is inconsistent with principles of fairness and due process prevalent in Florida and the rest of the United States may also present additional constitutional considerations in the determination of whether or not those convictions are truly “analogous” for purposes of being considered as prior record for sentencing, or for penalty enhancement or offense reclassification.157

An added complication of the use of foreign convictions arises in the authentication of documents used to prove the existence of the conviction and the identity of the defendant as the person so convicted. Section 90.902, F.S. recognizes that authentication of a foreign document can be complex.158 Therefore, it includes a provision that eliminates the need for extrinsic evidence of authenticity of an “executed or attested” official foreign document accompanied by a final certification. “Executed” is defined as “[c]ompleted; carried into full effect; already done or performed.”159 “Attest” is defined as “to bear witness to a fact” or “to affirm to be true or genuine.”160 None of these definitions nor section 90.902 appears to require a signature, which although usual is not necessary for validity unless required by statute. While section 90.902(3) calls for the document to be executed by a person, courts construe the word “person” to be interchangeable with “government” in the context of authenticating documents. As far as being under seal, in general, the purpose of a seal is to attest in a formal manner the execution of an instrument, but absence of formality does not vitiate a document if its authenticity is unchallenged.161 Furthermore, a court may order that a foreign document be treated as presumptively authentic without a final certification when a party receives a reasonable opportunity to investigate the authenticity and accuracy of the document.162 A reasonable opportunity to investigate the authenticity and accuracy of the foreign document may thus eliminate the need for a final certification.163

The elements of the subject crime, not the stated degree or the sentence received, control in determining whether there is a Florida statute analogous to an out-of-state crime, because the various jurisdictions may choose to punish the same acts differently, so the elements of a crime are the surest way to trace that crime.164 An out-of-state conviction related to an offense that has only similar but different elements and does not constitute a “felony” in that state does not amount to a felony in Florida as a matter of law.165 Any uncertainty should be resolved in favor of the defendant. Furthermore, when unable to determine whether the offense is a felony or misdemeanor, it must be scored as a misdemeanor.

Note that this is different from use of out-of-state prior convictions to determine qualification for reclassification as a recidivist habitual felony offender, habitual violent felony offender, three-time violent felony offender, or violent career criminal under section 775.084, F.S. To constitute a “qualifying offense” under this section, the out-of-state conviction must be “substantially similar in elements and penalties to an offense in this state” and must be punishable by imprisonment over one year.166 Thus, while only the elements of the out-of-state conviction may be considered for purposes of scoring prior out-of-state convictions, elements and penalty may be considered for purposes of qualification for reclassification.

Prior record (Section IV) – County or municipal ordinances

Prior record includes convictions for violations of county or municipal ordinances that incorporate by reference a penalty under state law.167 “Conviction” in this sense includes withholds of adjudication.168

Prior record (Section IV) – Entries showing no disposition

Entries in criminal histories that show no disposition, disposition unknown, arrest only, or a disposition other than conviction must not be scored.169

Prior record (Section IV) – Sealed or expunged records

Criminal history records expunged or sealed under former section 943.058, F.S., or other provisions of law, including former sections 893.14 and 901.33, F.S., must be scored as prior record where the defendant whose record has been expunged or sealed is before the court for sentencing.170

Prior record (Section IV) – Uncertainty or ambiguity in the record

Any uncertainty in the scoring of the defendant’s prior record must be resolved in favor of the defendant and disagreement as to the propriety of scoring specific entries in the prior record must be resolved by the sentencing judge. When unable to determine whether the conviction to be scored as prior record is a felony or a misdemeanor, the conviction must be scored as a misdemeanor. When the degree of felony is ambiguous or the severity level cannot be determined, the conviction must be scored at severity level 1.171

The total number of points for this section should be entered in the space provided next to the Roman numeral IV at the right margin.

Where more than one scoresheet is used, primary and additional offenses from other (i.e., earlier) scoresheets may be scored here, even though they are considered “open” for purposes of those earlier scoresheets.

Withholds of adjudication count the same as adjudications, that is, as convictions, even where the defendant entered a plea of nolo contendere, received a probationary sentence, and successfully completed probation.172

Note that the prosecutor does not have to be exact as to subsection and paragraph when listing the applicable statute for a prior offense; sometimes, just listing the chapter number is sufficient. Statute numbers for prior offenses often can be found on the rap sheet. The prosecutor can also figure out the applicable statute based on the name or description of the offense. Where a prior offense was committed in a foreign jurisdiction (i.e., in other than a state court of Florida), the offense is scored at the level of its equivalent offense under Florida law, based on the identity of elements and not on the basis of level of offense assigned by the foreign jurisdiction. Thus, an offense that would be prosecuted as a first-degree misdemeanor theft in State X that has the same elements of proof as third-degree felony grand theft under Florida law would be scored as a third-degree felony.

Prior record (Section IV) – Revocation of probation

When a defendant is to be sentenced upon revocation of probation or community control and prior to that revocation the trial court’s jurisdiction over one or more of the originally sentenced offenses has expired, the offenses over which the trial court no longer has jurisdiction may not be scored as additional offenses. An offense over which jurisdiction has expired may is scored as prior record if it was committed prior to the commission of the primary offense. A contemporaneously committed offense does not precede the commission of the primary offense in time and does not qualify as prior record.173 This also means that if such an offense was committed subsequent to the commission of the primary offense, it is not scored at all.

Legal status violation (Section V)

“Legal status” means a defendant’s status if the defendant:

(a) Escapes from incarceration;

(b) Flees to avoid prosecution;

(c) Fails to appear for a criminal proceeding;

(d) Violates any condition of a supersedeas bond;

(e) Is incarcerated;

(f) Is under any form of pretrial intervention or diversion program; or

(g) Is under any form of court-imposed or post-prison release community supervision

at the time the defendant committed an offense before the court for sentencing.174 Four points are assessed for a defendant’s status.

“Court-imposed community supervision” includes but is not limited to administrative probation, community control, criminal quarantine community control, drug offender probation, community residential drug punishment, sex offender probation, and probation.175 There is no distinction in the law as to felony or misdemeanor legal status. This means that a defendant who is on misdemeanor probation or misdemeanor pretrial intervention who commits a felony while under that status may be assessed four legal status points on the same scoresheet on which that felony is scored.

Figure 8.  Legal status violation.

Court-imposed community supervision does not include pretrial release on bond.176 Having an outstanding warrant, as yet unexecuted at the time of the offense for which a defendant is being sentenced and for which the defendant has no notice, also does not amount to fleeing to avoid prosecution or failure to appear in a criminal judicial proceeding, and does not otherwise rise to the degree of legal constraint sufficient for the imposition of legal status points.177 In any event, the offense committed while under legal status must result in conviction and be before the court for sentencing for the four sentencing points to be added to the defendant’s scoresheet.178 Points for a legal status violation may be assessed only once, regardless of the existence of more than one form of legal status at the time an offense is committed or the number of offenses committed while under any form of legal status.

A common argument made by or on behalf of some defendants is that legal status points cannot, or should not, be assessed on a scoresheet where the defendant is also assessed community sanction points, because such a “double assessment” would be redundant, as where a defendant commits a new felony on probation and is assessed four legal status points and twelve community sanction points for the same criminal episode. This view is based on a misperception that a community sanction violation supplants a legal status violation. These are, in fact, separate concepts, as in the case where a defendant on felony probation commits a new felony that results in conviction, which is also the basis of a violation of the defendant’s original probation, and is assessed four points for having committed the new offense while in probationary status (in effect adding to the points assessed for the new offense), and twelve points for violation of the community sanction itself (in effect adding to the points assessed for the original offense or offenses for which the defendant was put on probation). Legal status points are in fact separate from, and may be assessed in addition to, community sanction points.179

As opposed to section 921.0024,180 Rule 3.704 requires that the offense committed while under legal status be before the court for sentencing, i.e., be a felony over which the court has jurisdiction and for which the defendant will be sentenced along with the other primary or additional offense or offenses appearing on the scoresheet. This means, for example, that a defendant who commits a felony while on misdemeanor probation or pretrial diversion is assessed the four legal status points when sentenced for the felony, but that a defendant on felony supervision who violates supervision by committing a misdemeanor would not be assessed the four legal status points when sentenced for the violation. The Rule goes on to provide that points for a legal status violation must only be assessed once regardless of the existence of more than one form of legal status at the time an offense is committed or the number of offenses committed while under any form of legal status.181 The Florida Supreme Court has interpreted predecessor language to mean that the provision for legal status points cannot be used as a multiplier, e.g., that legal status points cannot be assessed for each offense committed while under legal status and before the court for sentencing when there is more than one such offense.182 An open question is whether or not legal status points can be cumulative, as where the defendant (1) is placed on felony probation, (2) violates probation by committing a new felony, (3) is sentenced on the new offense and continued on the original probation, and (4) violates probation again by committing a new felony.

When a defendant is being sentenced in a probation or community control revocation hearing only for the original crime, legal status (or legal constraint) points may be added only if the defendant was under legal status (or legal constraint) at the time he or she committed the offense, not at the time supervision was revoked.183 On the other hand, if the defendant is being sentenced for another offense at the revocation hearing, then it is proper to find the defendant was under legal status (legal constraint) and add points.184 In other words, legal status points are to be assessed where the forms of legal status or constraint listed under the applicable sentencing rule existed at the time of the commission of crimes scored as primary or additional offenses at conviction.185

In situations where the defendant is being sentenced for a violation of supervision under one sentencing scheme for an offense committed under a subsequent sentencing scheme, and two scoresheets are utilized, it is error to assess legal status points on both scoresheets. In such a situation, the prosecutor can assess legal status points on the scoresheet for the new offense, but cannot assess those points on the scoresheet for the offense for which the defendant was originally placed on supervision, unless that offense was itself committed while the defendant was under a form of legal status recognized by the applicable sentencing rule. Conversely, the prosecutor can assess community sanction violation points on the scoresheet for the offense for which the defendant was placed on supervision, but not on the scoresheet for the new offense.186

One limit on the assessment of legal status points is where such an assessment runs afoul of Apprendi considerations. An example would be where a defendant with a substantial prior criminal record who is an inmate of a county jail commits a third-degree felony battery on another inmate, and the defendant’s minimum sentence will exceed the five-year statutory maximum for the offense if the four status points are added to the defendant’s scoresheet on top of the points assessed for the battery itself and the defendant’s prior record: Unless the defendant admits to the status violation or is found by the factfinder after trial that the defendant was in the legal status of being incarcerated at the time of the offense, the status points cannot be added.187

Community sanction before the court for sentencing (Section VI)

Community sanction violation sentencing points are assessed when the defendant is found to have violated a condition of either probation, community control, or pretrial intervention or diversion, and the community sanction violation is before the court for sentencing. Six community sanction violation sentencing points must be assessed for each violation or, if the violation results from a new felony conviction, 12 community sanction points must be assessed.188 If the community sanction violation is committed by a “violent felony offender of special concern” (VFOSC), as defined in section 948.06, twelve community sanction violation points are assessed for the violation and for each successive violation of felony probation or community control where the violation does not include a new felony conviction and the community sanction violation is not based solely on the defendant’s failure to pay costs or fines or make restitution payments, and twenty-four community sanction violation points are assessed for the violation and for each successive violation of felony probation or community control where the violation includes a new felony conviction.189 Where there are multiple community sanction violations, points may be assessed only for each successive violation that follows a continuation of supervision, or modification or revocation of the community sanction before the court for sentencing and are not to be assessed for violation of several conditions of a single community sanction. A defendant may not be assessed duplicate assessments when more than one offense is before the court for sentencing.190 The assessment for successive violations, in effect, penalizes the defendant who repeatedly fails to take advantage of the opportunity provided by probation or community control.191 Multiple counts of community sanction violations before the sentencing court may not be the basis for multiplying the assessment of community sanction violation points, however.

Figure 9.  Community sanction violation.

A scoresheet must take into account all violations of supervision pending at sentencing, and must include both legal status points and community sanction points for any supervision violation.192 A new felony conviction can be scored as the primary offense and serve as the basis to add points for a new law violation and an additional four points for legal status violation.193 Note that where the defendant violates probation or community control with an arrest for a new misdemeanor offense, and the misdemeanor remains in county court and is not consolidated with the defendant’s cases before the circuit court, both the legal status and community sanction points are assessed, but the misdemeanor offense is not carried on the scoresheet as an additional offense because that offense is not before the court for sentencing as long as the county court retains jurisdiction. Where the defendant is on misdemeanor supervision in county court and is charged with a felony, the scoresheet for the felony can include four points for a legal status violation, because the defendant was on legal status at the time of the offense, but the scoresheet cannot include points for community sanction violation because only the felony that gives rise to the violation of supervision and not the sanction for that violation is before the court for sentencing.

Community sanction points are cumulative where there are successive violations under the same sentencing scheme, even when there is more than one sentencing scheme in play as illustrated by the following examples:

EXAMPLE 1:

Defendant A is arrested for a felony offense in September 1998 and is placed on probation. In November 1998 he violates his probation by failing to report to his probation officer and is returned to probation after admitting the violation. He violates his probation again in 1999 when he fails to attend drug offender counseling and tests positive for opiates, which violates conditions of his probation. The defendant admits the violations and is placed on community control. In 2000, the defendant again violates community control by being out of residence without the permission of his community control officer. The defendant is sentenced to prison on the original felony count, and after serving time in boot camp is returned to probation, which he violates in 2002 by committing a new felony offense.

EXAMPLE 2:

Defendant A is arrested for a felony offense in September 1998 and is placed on probation. In November 1998 he violates his probation by committing a new felony offense and is returned to probation after admitting the violation and pleading guilty to the new offense. He violates his probation again in 1999 when he commits new offenses, including a felony. The defendant admits the violation and pleads guilty to the new offenses and is placed on community control. In 2000, the defendant again engages in criminal conduct, including a new felony offense. The defendant is sentenced to prison on the felony counts in these four separate cases, and after serving time in boot camp is returned to probation, which he violates in 2002 by committing a new felony offense.

In Example 1, the defendant would have two scoresheets: He would be assessed 24 community sanction points on a 1995 Sentencing Guidelines scoresheet194 for the first three violations, as well as an additional 12 points for the fourth violation occurring in 2002 which resulted in a new felony conviction, for a total of 36 community sanction points on that scoresheet. The 2002 felony would also be scored as the primary offense on a Criminal Punishment Code Scoresheet, but no community sanction points would be assessed on that scoresheet.

In Example 2, however, the defendant would be assessed 12 points for each new felony conviction on a 1995 Sentencing Guidelines scoresheet, for a total of 48 community sanction points. In addition, the defendant would be assessed a total of 36 community sanction points on a Criminal Punishment Code scoresheet, 12 points for each new felony conviction occurring since October 1, 1998, with the felony committed after that date which is the highest level offense being scored as the primary offense on that scoresheet.195

Firearm/semi-automatic or machine gun (Section VII)

Possession of a firearm, semiautomatic firearm, or machine gun during the commission or attempt to commit a crime will result in additional sentencing points. Eighteen sentencing points are assessed if the defendant is convicted of committing or attempting to commit any felony other than those enumerated in section 775.087(2), F.S., while having in his or her possession a firearm as defined in section 790.001, F.S. Twenty-five sentencing points are assessed if the defendant is convicted of committing or attempting to commit any felony other than those enumerated in section 775. 087(3), F.S., while having in his or her possession a semiautomatic firearm as defined in section 790.001(9). Only one assessment of either 18 or 25 points can be made.196 Firearm points may be assessed even if the defendant acted as a principal, did not use the firearm to commit the underlying offense, and the firearm was inoperable,197 as where the defendant is convicted of carrying a concealed weapon or possessing a firearm as a convicted felon.198

Figure 10.  Firearm/semi-automatic or machine gun.

Extra points may not be added to a defendant’s sentencing scoresheet on the basis that the defendant possessed a firearm, where the use or possession of the firearm is inherent in the commission of the underlying felony.199

Prior serious felony (Section VIII)

A single assessment of thirty prior serious felony points is added if the defendant has a primary offense or any additional offense ranked in level 8, 9, or 10 under section 921.0022 or section 921.0023, F.S., and one or more prior serious felonies. A “prior serious felony” is an offense in the defendant’s prior record ranked 8, 9, or 10 and for which the defendant is serving a sentence of confinement, supervision or other sanction or for which the defendant’s date of release from confinement, supervision, or other sanction, whichever is later, is within 3 years before the date of the primary offense or any additional offenses were committed. Out of state convictions wherein the analogous or parallel Florida offenses are located in offense severity level 8, 9, or 10 must be considered prior serious felonies.200

Figure 11.  Prior serious felony.

Subtotal sentence points

“Subtotal sentence points” is the sum of the primary offense points, the total additional offense points, the total victim injury points, the total prior record points, any legal status points, community sanction points, points for possession of a firearm or semiautomatic or machine gun, and prior serious felony points.201

Figure 12.  Subtotal sentence points.

Enhancements (Section IX)

Enhancements (sentence multipliers) under this section apply only if the primary offense qualifies for enhancement. Enhancements do not apply to additional offenses. All of the enhancements in this section, except for one (drug trafficking), are mandatory and not discretionary when the defendant has the requisite prior convictions.202 As long as different purposes are served by sentencing enhancements or the elements causing the enhancements are not the same, multiple enhancements are allowed. With respect to double enhancements, the double jeopardy clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.203 Where two enhancement provisions serve different purposes and the legislature has not indicated that the provisions are to be mutually exclusive, both enhancements may be used.204 This means that double enhancements are allowed only if two different harms are addressed by each enhancement.205 Note that the State has the burden of presenting evidence proving the existence of the multiplier, and not merely argument, before the court can find that an offense qualifies for enhancement.206 Note, also, that an enhancement that was not applied at the original sentencing can be applied upon remand for resentencing,207 or in VOP sentencing.208

Figure 13.  Enhancements.

Enhancements (Section IX) – Law enforcement protection

If the primary offense is a violation of the Law Enforcement Protection Act under section 775.0823(2), (3) or (4), the subtotal sentence points are multiplied by a factor of 2.5. If the primary offense is a violation of sections 775.0823(5), (6), (7), (8), or (9), the subtotal sentence points are multiplied by a factor of 2.0. If the primary offense is a violation of the Law Enforcement Protection Act under sections 775.0823(10) or (11), section 784.07(3),209 or section 775.0875(1), the subtotal sentence points are multiplied by a factor of 1.5.210 The information does not have to recite a violation of section 775.0823, F.S., in order for the trial court to incorporate a law enforcement multiplier into a defendant’s scoresheet. Where, for example, the offense charged is aggravated assault on a law enforcement officer and the verdict of guilt requires a finding that the assault was against a law enforcement officer, the defendant is on legal notice that the use of the multiplier is permissible given the plain language of the sentencing statutes.211 Where the information merely describes the victim as an “officer” and does not identify the victim as a law enforcement officer or reference section 775.0823(2), F.S., the jurors were not instructed that the victim was in law enforcement, and the verdict form did not ask them to determine whether the crime was committed against a law enforcement officer, the multiplier may not be used.212

Enhancements (Section IX) – Drug trafficking

If the primary offense is drug trafficking under section 893.135, F.S., ranked in offense severity level 7 or 8, the subtotal sentence points may be multiplied, at the discretion of the sentencing court, by a factor of 1.5.213

Enhancements (Section IX) – Grand theft motor vehicle

If the primary offense is grand theft of the third degree of a motor vehicle and the defendant’s prior record includes three or more grand thefts of the third degree of a motor vehicle, the subtotal sentence points are multiplied by a factor of 1.5.214 Section 921.0024(1) and Fla. R.Crim. P. 3.704 (d)(21) do not distinguish between adult or juvenile offenses, or between withholds of adjudication or imposition of delinquency or guilt. This means that, so long as a grand theft of the third degree of a motor vehicle qualifies for inclusion in the defendant’s prior record under section 921.0021(5) or Fla. R. Crim. P. 3.704(d)(14), that prior offense can be used as one of the predicates for application of the multiplier. Note that grand thefts of other than the third degree of motor vehicles do not qualify for purposes of this multiplier either as the primary offense or as prior record.215

Enhancements (Section IX) – Gang

This enhancement applies for offenses committed on or after October 1, 1996. If the defendant is found to have committed the primary offense for the purpose of benefitting, promoting, or furthering the interests of a criminal gang216 under section 874.04, F.S., at the time of the commission of the primary offense, the subtotal sentence points are multiplied by a factor of 1.5.217 Note, however, that sentencing enhancements based merely on gang membership had been declared unconstitutional by the Florida Supreme Court,218 and that sections 874.04 and 921.0024(1)(b) were subsequently amended by the legislature to bring these statutes into conformity with that Supreme Court ruling.219 Section 874.04 also allows for penalty enhancement at sentencing of any properly classified criminal gang offense, whether or not it is the primary offense or an additional offense.220

Enhancements (Section IX) – Domestic violence

This enhancement applies for offenses committed on or after October 1, 1997. If the primary offense is a crime of domestic violence as defined in section 741.28, F.S., which was committed in the presence of a child under 16 years of age who is a family household member as defined in section 741.28(2) with the victim or perpetrator, the subtotal sentence points are multiplied by a factor of 1.5. 221

Note that sentence calculation enhancements are separate and apart from statutory offense enhancements and that the judicial application of any multiplier or enhancer based on any fact other than a prior conviction requires a finding by the jury, beyond a reasonable doubt, of the facts necessary to impose this multiplier if the total, as so multiplied, exceeds the statutory maximum of the sentence for the offense or offenses charged.222

Total sentence points

“Total sentence points” is the total of all sentence points assessed on the scoresheet.223 This number will be the same as the one appearing in the subtotal sentence points appearing just below Section VII if there are no enhancements, or the number appearing below Section IX if there are enhancements.

Figure 14.  Total sentence points.

Sentence computation

The lowest permissible sentence is the minimum sentence that may be imposed by the trial court, absent a valid reason for departure. When the total sentence points equals or is less than 44 points, the lowest permissible sentence is any nonstate prison sanction, unless the court determines within its discretion that a prison sentence, which may be up to the statutory maximums for the offenses committed, is appropriate. When the total sentence points exceeds 44 points, the lowest permissible sentence in prison months must be calculated by subtracting 28 points from the total sentence points and decreasing the remaining total by 25 per cent. The total sentence points must be calculated only as a means of determining the lowest permissible sentence.224

An exception to this rule is that if a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third-degree felony but not a forcible felony as defined in section 776.08, and excluding any third-degree felony violation under chapter 810, and if the total sentence points pursuant to section 921.0024 are 22 points or fewer, the court must sentence the defendant to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to section 775.082.225 The net effect of section 775.082 making nonstate prison sanctions the presumptive sentence where the defendant is being sentenced for a nonviolent third degree felony and scores 22 points or fewer on his or her scoresheet arguably makes nonstate prison sanctions the statutory maximum for Sixth Amendment purposes under Blakely,226 and the imposition of a prison sentence a de facto upward departure subject to the limitations of Apprendi227 regarding facts upon which any upward departure is based. Note that “danger” may, at least in some cases, encompass pecuniary or economic harm.229

Figure 15.  Sentence computation

The permissible range for sentencing is the lowest permissible sentence up to and including the statutory maximum, as defined in section 775.082, for the primary offense and any additional offenses before the court for sentencing. The sentencing court may impose such sentences concurrently or consecutively. However, any sentence to state prison must exceed 1 year. If the lowest permissible sentence under the Code exceeds the statutory maximum sentence as provided in section 775.082, the sentence required by the Code must be imposed. If the total sentence points are greater than or equal to 363, the court may sentence the offender to life imprisonment. A defendant sentenced to life imprisonment under section 921.0024 is not eligible for any form of discretionary early release, except executive clemency or conditional medical release under section 947.149. Where the total sentence points are greater than or equal to 363, the court may elect either to impose a sentence up to the statutory maximum (or the lowest permissible sentence under the Code if greater than the statutory maximum) or to impose life imprisonment, and the court cannot sentence the defendant to a composite of both or anything in between.230

Right below the box used to show the sentence calculation is a box with a blank space reserved for the maximum sentence in years. The maximum sentence is normally determined by adding all of the statutory maximums for the primary offense and all of the additional offenses, including all open charges, VOPs, and VOCCs, as defined in section 775.082. Where, for example, the primary offense is a second degree felony and the additional charge consists of three third-degree felonies, the maximum sentence in years would be “30.” Such statutory maximums may be imposed concurrently or consecutively.

As a matter of statutory interpretation in sentencing, where the lowest permissible scoresheet sentence exceeds the statutory maximum, the lowest permissible sentence is the maximum. E.g., a third degree felony has a statutory maximum sentence of five years under section 775.082, F.S.; if, however, a defendant with a primary offense that is a third degree felony has a prior record that, when calculated with the primary, offense yields a score of greater than five years, the lowest permissible score on the scoresheet becomes the “true” maximum sentence pursuant to section 921.0024(2), F.S. This true, or “floating,” maximum aspect of Criminal Punishment Code sentencing was upheld by the Florida Supreme Court in Butler v. State.231 If total sentence points are greater than or equal to 363, a life sentence may be imposed. Butler resolved the apparent statutory conflict between two provisions of the Criminal Punishment Code: (1) section 921.002(1)(g), F.S., which does not authorize a court to impose a sentence in excess of the statutory maximum; and (2) section 921.0024(2), F.S., which directs that “if the lowest permissible sentence under the [Criminal Punishment Code] exceeds the statutory maximum sentence . . ., the sentence required by the code must be imposed.” The Florida Supreme Court concluded that there is no conflict between the statutes and therefore a trial court could sentence a defendant to a term in excess of the statutory maximum for an offense committed after October 1, 1998, where the lowest permissible sentence under the Code exceeded the statutory maximum. The Court held that the two provisions of the Criminal Punishment Code can be harmonized, and pointed to the wording of Fla. R. Crim. P. 3.704(d)(25), which states in pertinent part:

The permissible range for sentencing must be the lowest permissible sentence up to and including the statutory maximum, as defined in section 775.082, for the primary offense and any additional offenses before the court for sentencing. The sentencing court may impose such sentences concurrently or consecutively. However, any sentence to state prison must exceed 1 year. If the lowest permissible sentence under the Code exceeds the statutory maximum sentence as provided in section 775.082, the sentence required by the Code must be imposed.

The court reasoned that the two provisions should be read in pari materia and could be harmonized because section 921.002(1)(g) applies to general sentencing, while section 921.0024(2) applies to those circumstances in which “the lowest permissible sentence under the Criminal Punishment Code exceeds the statutory maximum”: by this rule, application of section 921.0024(2) is an exception to the general provision of section 921.002(1)(g) that sentences cannot exceed the statutory maximum. The Court held, however, that when section 921.0024(2) applies so that the statutory maximum sentence as provided in section 775.082, F.S., is exceeded by the lowest permissible sentence under the Criminal Punishment Code, the lowest permissible sentence under the Criminal Punishment Code becomes the maximum sentence which the trial judge can impose.232

The rule in Butler resolved only the potential statutory conflicts between sections 921.002(1)(g) and 921.0024(2), F.S., however, and sentences exceeding the relevant statutory maximum are still subject to the constitutional limitations imposed by the rule of Apprendi, which Butler did not address. Under the Criminal Punishment Code, however, the sentencing judge is entitled to impose a sentence up to the statutory maximum without having to make any factual findings.233 Similarly, Blakely v. Washington234 does not limit the sentencing judge to imposition of the presumptive minimum sentence as calculated on the scoresheet.235 As a matter of constitutional law, however, a jury’s conviction can, in certain situations, represent a sufficient jury finding to authorize a sentence enhanced beyond the statutory maximum without that issue being explicitly submitted to the jury and found by the jury to have been proven beyond a reasonable doubt before the trial court can assess those points.236 The trial court may also impose such an enhancement beyond the statutory maximum where the defendant does not go to trial but enters a plea and admits the facts as presented to the court at the sentencing hearing, Apprendi notwithstanding.237

In Mays v. State,238 the Florida Supreme Court construed the phrase in section 921.001(5), F.S., “If a recommended sentence under the guidelines exceeds the maximum sentence otherwise authorized by section 775.082, the sentence under the guidelines must be imposed, absent a departure,” to permit a sentence in excess of the statutory maximum for an offense when the defendant’s scoresheet resulted in a “true” minimum sentencing range that was above the statutory maximum. Similarly, for those defendants who committed their crimes after October 1, 1998, section 921.0024(2), F.S., provides that “if the lowest permissible sentence under the code exceeds the statutory maximum sentence as provided in section 775.082, the sentence required by the code must be imposed,” which has also been construed as providing statutory authority for imposing sentences beyond the statutory maximums provided in section 775.082, F.S.239 The United States Supreme Court effectively overruled Mays in Apprendi as to scoring factors that would increase the minimum sentence beyond the relevant statutory maximum that are neither alleged in the charging document nor found by a jury beyond a reasonable doubt.240 When scoring the maximum sentence, any additional misdemeanor offenses are usually ignored in calculating the number that goes in this space. Where, for example, a defendant with no prior record is charged with one third-degree felony and two first-degree misdemeanors, the number in this space should be a “5” and not a “7,” because the Criminal Punishment Code does not apply to misdemeanor sentencing.

Total sentence imposed

After the sentence computation, the scoresheet is ready for use at sentencing. The total sentence imposed is indicated below the Sentence Computation section and the space for the judge’s signature. In this part of the form are four vertically-arranged boxes, used to indicate how the defendant was sentenced: state prison, county jail, community control, or probation, plus a box to the right of the state prison box used to indicate whether the defendant received a life sentence, and another below that and to the right of the county jail box to indicate whether the defendant received a time-served sentence. To the right of and on line with the state prison, county jail, community control, and probation boxes are three sets of vertically-arranged lines used to indicate the duration of years, months, and/or days of the defendant’s sentence. If, for example, the defendant received a sentence of three years of imprisonment followed by eighteen months of probation, the prosecutor will check the “State Prison” box, move to the right under the “Years” heading and place a “3” on the line even with the state prison box, move down to the “probation” box, check it, and move to the right and on the line under “Months” insert an “18.” Any sentence to state prison must exceed one year duration.

Figure 16.  Total sentence imposed.

Note that, where the defendant is being sentenced for more than one offense, a court may impose either concurrent sentences or consecutive sentences, but not a combination.241 Where the defendant is sentenced to prison, the court may not impose a prison sentence that is part concurrent with and part consecutive to another prison sentence.242

Sentences imposed after revocation of probation or community control

It is necessary for the prosecutor to prepare a new completed scoresheet for use at sentencing after a revocation of probation or community control, and the failure of the sentencing judge to have one is reversible error.243 Sentences imposed after revocation of probation or community control must be imposed according to the sentencing law applicable at the time of the commission of the original offense.244 On resentencing the defendant after a revocation of probation or community control, the court has the authority to use a scoresheet that includes the scoring of prior convictions that were mistakenly omitted from the original scoresheet, even if the omission is through no fault of the defendant.245 This rule has also been extended to the addition of a sentencing multiplier that was not included on the original scoresheet.246

Split sentences

If a split sentence is imposed, the total sanction (incarceration, community control, and/or probation) must not exceed the term provided by general law or the maximum sentence under the Criminal Punishment Code.247

Enhanced/minimum mandatory sentences

Just below that portion of the Total Sentenced Imposed portion of the scoresheet pertaining to the number of years, months, and days is a set of boxes which are used to indicate whether the sentence was enhanced by any of the following categories: habitual offender, habitual violent offender, violent career criminal, prison releasee reoffender, or if mandatory minimum sentencing applies.

For those having a mandatory minimum sentence, a scoresheet must be completed and the lowest permissible sentence under the Criminal Punishment Code calculated. If the lowest permissible sentence is less than the mandatory minimum sentence, the mandatory minimum sentence takes precedence, subject to Apprendi considerations. Mandatory minimum sentences must be recorded on the scoresheet.248 Note, also, that statutory enhancement does not make a ranked offense an unlisted offense under section 921.0023, F.S.249

Reasons for departure – Mitigating circumstances

Just below that portion of the Total Sentence Imposed portion of the scoresheet pertaining to minimum mandatory enhancements, and above the box for the judge’s signature, are two boxes labeled “Mitigated Departure” and “Plea Bargain” which are used to indicate whether the judge dropped below the minimum guideline sentence or minimum mandatory sentence on the basis of mitigation (where the judge has discretion to do so), or an agreement between the defense and the prosecutor. There is also a line labeled “Other reasons,” on which the prosecutor (or judge) writes any other specific reason permitted under the law that was used for departure in sentencing the defendant.

Any downward departure from the lowest permissible sentence, as calculated according to the total sentence points under section 921.0024, F.S., is prohibited unless there are circumstances or factors that reasonably justify the downward departure. Circumstances or factors that can be considered include, but are not limited to, those listed in section 921.0026(2), F.S.250

On the Criminal Punishment Code Supplemental Scoresheet (Figure 2), which is primarily used to tally the additional offenses and prior record offenses that cannot fit on the front sheet, there is a section at the bottom that lists departure reasons. If the defendant’s total score is non-state prison at the bottom, the departure section of this sheet is not necessary. Where the defendant scores mandatory state prison (MSP), the judge must check one or more of these boxes, or write the reason(s) for departure on the scoresheet, whenever there is a departure below the minimum mandatory scoresheet sentence.

If a sentencing judge imposes a sentence that is below the lowest permissible sentence, it is a departure sentence and must be accompanied by a written statement by the sentencing court delineating the reasons for the departure, filed within seven days after the date of sentencing. A written transcription of orally stated reasons for departure articulated at the time sentence was imposed is sufficient if it is filed by the court within seven days after the date of sentencing. The sentencing judge may also list the written reasons for departure in the space provided on the Criminal Punishment Code scoresheet.

NOTE: The placement of a defendant on drug offender probation pursuant to section 948.20, F.S., formerly section 948.01(13), F.S., is not a departure sentence because that sanction is an alternative sentencing scheme independent of the sentencing guidelines of the Criminal Punishment Code.251

The written statement delineating the reasons for departure must be made a part of the record. The written statement, if it is a separate document, must accompany the scoresheet provided to the Department of Corrections under section 921.0024(6), F.S.252

In-court procedure

At sentencing, when it is certain that sentence will in fact be imposed (in changes of plea the defendant sometimes gets cold feet or tries to renegotiate the deal), the prosecutor will fill in the date of sentencing, and the sentence imposed, then separate the goldenrod sheets and give them to the Department of Corrections representative (who should be seated at the prosecutor’s table), give the pink sheets to the defense attorney (if not already provided at pretrial or earlier in the sentencing hearing), place the canary sheets in the State’s file, and give the white and green sheets, still stuck together, to the judge for signature. After the judge signs the scoresheet, he or she gives it to the clerk, and the white (original) copy stays in the court file and the green sheets are passed on to the Department of Corrections. Where automated scoresheets are created and identical copies are prepared, it is helpful to annotate which copy is to be submitted to the judge, the clerk, the defense, and to the Department of Corrections representative, and which copy is to be retained in the State’s file. Regardless of which type of form is used, where a defendant is sentenced on multiple cases at the same sentencing hearing using the same scoresheet, the prosecutor should place a copy of the completed scoresheet, with sentence imposed annotated thereon, in each file after sentencing is completed.

Judge’s signature

At the bottom of the last page of the scoresheet, below all else, is the place where the judge places his or her signature. The judge must sign the scoresheet before it can be validly placed in the record.253

Figure 17.  Judge’s signature.

__________

NOTES

1 See also, Fla. R. Crim. P. 3.704; sections 921.0021-22, F.S.; Florida Criminal Punishment Scoresheet Preparation Manual, Florida Department of Corrections and the Office of the State Courts Administrator (November 2005).

2 Fla. R. Crim. P. 3.704(d).

3 In June 2004, for example, Criminal Punishment Code scoresheets accounted for 99.2% of the scoresheets submitted to the Department of Corrections; .6% were 1995 Sentencing Guidelines scoresheets; .2% were 1994 Sentencing Guidelines scoresheets. See, Florida’s Criminal Punishment Code: A Comparative Assessment (FY 2004-2005), Florida Department of Corrections at http://www.dc.state.fl.us/pub/sg_annual/0405/index.html.

4 See, Fla. R. Crim. P. 3.992; Sec. 921.0024 (1)(a), F.S.

5 Sec. 921.0022(1), F.S.

6 See, Ducharme v. State, 690 So. 2d 1358 (Fla. Dist. Ct. App. 2d Dist. 1997).

7 Sec. 921.0022(2), F.S.

8 Sec. 921.0023, F.S.

9 Williams v. State, 784 So. 2d 524 (Fla. Dist. Ct. App. 4th Dist. 2002).

10 Jefferson v. State, 847 So. 2d 534 (Fla. Dist. Ct. App. 3d Dist. 2003).

11 See, Florida Criminal Punishment Code Scoresheet Preparation Manual, Florida Department of Corrections and the Office of State Courts Administrator (July 2009), p. 5.

12 Sec. 921.0021(4), F.S.; Fla. R. Crim. P. 3.704(d)(7).

13 Sec. 921.0021(4), F.S.; Fla. R. Crim. P. 3.704(d)(7).

14 State v. Lamar, 659 So. 2d 262 (Fla. 1995).

15 State v. Alberto, 847 So. 2d 10914 (Fla. Dist. Ct. App. 4th Dist. 2003).

16 Sec. 921.0023, F.S.

17 Williams v. State, 784 So. 2d 524 (Fla. Dist. Ct. App. 4th Dist. 2002).

18 Jefferson v. State, 847 So. 2d 534 (Fla. Dist. Ct. App. 3d Dist. 2003).

19 See, Gill v. State, 886 So. 2d 988 (Fla. Dist. Ct. App. 2d Dist. 2004); Mitchell v. State, 791 So. 2d 1257 (Fla. Dist. Ct. App. 5th Dist. 2001); Holt v. State, 781 So. 2d 498 (Fla. Dist. Ct. App. 5th Dist. 2001); Millien v. State, 766 So. 2d 475 (Fla. Dist. Ct. App. 4th Dist. 2000); Roberts v. State, 715 So. 2d 302 (Fla. Dist. Ct. App. 5th Dist. 1998); Ducharme v. State, 690 So. 2d 1358 (Fla. Dist. Ct. App. 2d Dist. 1997); see also, Newberry v. State, 677 So. 2d 884 (Fla. Dist. Ct. App. 5th Dist. 1996).

20 Newberry v. State, 677 So. 2d 884 (Fla. Dist. Ct. App. 5th Dist. 1996).

21 Sec. 777.03(2)(a), F.S.

22 Sec. 777.03(2)(b), F.S.

23 Sec. 777.03(2)(c), F.S.

24 Sec. 777.03(2)(d), F.S.

25 Sec. 777.03(3), F.S.

26 Fla. R. Crim. P. 3.704(10).

27 Fla. R. Crim. P. 3.704(11).

28 Sec. 893.135(5), F.S., provides that drug trafficking conspiracy is punishable as if the conspirator had committed the prohibited act. See, Kennedy v. State, 915 So. 2d 269 (Fla. Dist. Ct. App. 4th Dist. 2005) (Defendant convicted of trafficking in cocaine and conspiracy to traffic in cocaine was not entitled to have conspiracy charge scored as a level seven unranked offense on sentencing scoresheet).

29 Sec. 777.04(4)(a), F.S.

30 Sec. 777.04(4)(b), F.S.

31 Sec. 777.04(4)(c), F.S.

32 Sec. 777.04(4)(d), F.S.

33 Sec. 777.04(4)(e), F.S.

34 Sec. 777.04(4)(f), F.S.

35 Sec. 921.0024, F.S.; Fla. R. Crim. P. 3.704 (d)(13).

36 See, Sec. 921.0024, F.S.

37 See, Florida Criminal Punishment Scoresheet Preparation Manual (2005), Florida Department of Corrections and the Office of State Courts Administrator, p. 7.

38 Note that neither Sec. 921.0024 nor Fla. R. Crim. P. 3.704(d)(13) has the unique exclusionary language of Fla. R. Crim. P. 3.703(d)(15) that would preclude use of the multiplier if the capital offense was pending before the court for sentencing at the same time as the non-capital offense.

39 Sec. 775.082(1), F.S.

40 Rusaw v. State, 451 So. 2d 469 (Fla. 1984).

41 See, State v. Boatwright, 559 So. 2d 210 (Fla. 1990); Rowe v. State, 417 So. 2d 981 (Fla. 1982).

42 In Buford v. State, 403 So. 2d 943 (Fla. 1981), certiorari denied, 454 U.S. 1163, 102 S. Ct. 1037, 71 L. Ed. 2d 319 (1982), the Florida Supreme Court held that sexual battery of a child under 12 by a person over 18 is not punishable by death and is, therefore, not a capital crime. See also, Jones v. State, 861 So. 2d 1261 (Fla. Dist. Ct. App. 4th Dist. 2003) (capital sexual battery is a life felony for purposes of the Prison Releasee Reoffender Punishment Act, Sec. 775.082(9)(a) 3.a., F.S.

43 See, Huffman v. State, 611 So. 2d 2 (Fla. Dist. Ct. App. 2d Dist. 1992); see also, Colon v. State, 909 So. 2d 484 (Fla. Dist. Ct. App. 5th Dist. 2005).

44 See, Stuart v. State, 536 So. 2d 363 (Fla. Dist. Ct. App. 2d Dist. 1988).

45 Sec. 921.0021(1), F.S.; Fla. R. Crim. P. 3.704(d)(8).

46 Knarich v. State, 866 So. 2d 165 (Fla. Dist. Ct. App. 2d Dist. 2004); Contreras v. State, 749 So. 2d 524 (Fla. Dist. Ct. App. 2d Dist. 1999); see also, Holybrice v. State, 753 So. 2d 621 (Fla. Dist. Ct. App. 4th Dist. 2000).

47 Knarich v. State, 866 So. 2d 165 (Fla. Dist. Ct. App. 2d Dist. 2004); Witherspoon v. State, 601 So. 2d 607 (Fla. Dist. Ct. App. 5th Dist. 1992); see, Pugh v. State, 463 So. 2d 582 (Fla. Dist. Ct. App. 1st Dist. 1985).

48 See, Roberts v. State, 507 So. 2d 761 (Fla. Dist. Ct. App. 1st Dist. 1987); Johnson v. State, 476 So. 2d 786 (Fla. Dist. Ct. App. 1st Dist. 1985); Pugh v. State, 463 So. 2d 582 (Fla. Dist. Ct. App. 1st Dist. 1985).

49 State v. Lamar, 659 So. 2d 262 (Fla. 1995); see also, State v. Alberto, 847 So. 2d 1091 (Fla. Dist. Ct. App. 4th Dist. 2003).

50 Sanders v. State, 35 So.3d 864 (Fla. 2010).

51 Sec. 921.0024, F.S.; Fla. R. Crim. P. 3.704(d)(13).

52 Sec. 921.0021(7), F.S.; Fla. R. Crim. P. 3.704(d)(9).

53 Fudge v. State, 791 So. 2d 1186 (Fla. Dist. Ct. App. 5th Dist. 2001).

54 Kelly v. State, 701 So. 2d 1253 (Fla. Dist. Ct. App. 5th Dist. 1997).

55 Hall v. State, 598 So. 2d 230 (Fla. Dist. Ct. App. 2d Dist. 1992).

56 See, Sims v. State, 869 So. 2d 45 (Fla. Dist. Ct. App. 5th Dist. 2004).

57 See, Rodriguez v. State, 684 So. 2d 864 (Fla. Dist. Ct. App. 2d Dist. 1996).

58 See, Delgado v. State, 948 So. 2d 883 (Fla. Dist Ct. App. 3d Dist. 2007).

59 Rogers v. State, 963 So. 2d 328 (Fla. Dist. Ct. App. 2d Dist. 2007); but see Delgado v. State, 948 So. 2d 883, 884 (Fla. Dist. Ct. App. 3d Dist. 2007) (holding that assessment of victim injury points was improper because the information did not allege the factual basis for the victim injury points).

60 Sims v. State, 998 So. 2d 494 (Fla. 2008).

61 Sec. 921.0021(7)(e), F.S.; see, Sims v. State, 869 So. 2d 45 (Fla. Dist. Ct. App. 5th Dist. 2004) (victim dragged under defendant’s vehicle as defendant fled scene of crash); May v. State, 74 So. 2d 459 (Fla. Dist. Ct. App. 4th Dist. 1999) (while trying to dislodge body of pedestrian he had hit, defendant swerved from side to side, throwing victim’s body into middle of street where victim was struck by another car); Rodriguez v. State, 684 So. 2d 864 (Fla. Dist. Ct. App. 2d Dist. 1996) (no causal connection between leaving the scene and victim injury); Geary v. State, 675 So. 2d 625 (Fla. Dist. Ct. App. 2d Dist.), review denied, 680 So. 2d 422 (Fla. 1996) (same); Longshore v. State, 655 So. 2d 1139 (Fla. Dist. Ct. App. 5th Dist. 1995) (same).

62 See, Ashley v. State, 701 So. 2d 338 (Fla. 1997) (at common law, while third party could be held criminally liable for causing injury or death to fetus, pregnant woman could not be); see also, State v. Carey, 76 Conn. 342, 56 A. 632, 636 (Conn. 1904) (courts differentiate between those actions taken by a third party: ordinarily, a man may injure his own body by his own hand or the hand of an agent without himself violating the criminal law).

63 State v. Williams, 854 So. 2d 215 (Fla. Dist. Ct. App. 1st Dist. 2003) (victim injury points should be assessed for each injury, even though the offenses involve a single victim); Jupiter v. State, 833 So. 2d 169 (Fla. Dist. Ct. App. 1st Dist. 2002) (scoring for distinct injuries sustained by a single victim as the result of separate offenses).

64 See, Jupiter v. State, 833 So. 2d 169 (Fla. Dist. Ct. App. 1st Dist. 2002).

65 See, Lowe v. State, 742 So. 2d 350 (Fla. Dist. Ct. App. 5th Dist. 1999).

66 Sailor v. State, 877 So. 2d 738 (Fla. Dist. Ct. App. 1st Dist. 2004).

67 Cooper v. State, 919 So. 2d 516 (Fla. Dist. Ct. App. 1st Dist. 2005).

68 See, Newman v. State, 782 So. 2d 462 (Fla. Dist. Ct. App. 2d Dist. 2001).

69 Key v. State, 779 So. 2d 525 (Fla. Dist. Ct. App. 2d Dist. 2000), rev. den. 794 So. 2d 605 (Fla. 2001) (error to assess 120 victim injury points for child’s death where defendant charged with first-degree murder and aggravated child abuse only convicted of misdemeanor battery and child abuse), after remand, Key v. State, 837 So. 2d 535 (Fla. Dist. Ct. App. 2d Dist. 2003) (jury’s acquittal of aggravated child abuse and conviction for child abuse necessarily precludes finding of great bodily harm and defendant cannot be assessed 40 victim injury points for great bodily harm).

70 Arrowood v. State, 843 So. 2d 940, 941 (Fla. Dist. Ct. App. 1st Dist. 2003); Lopez v. State, 865 So. 2d 654 (Fla. Dist. Ct. App. 1st Dist. 2004).

71 See, Carter v. State, 920 So. 2d 735 (Fla. Dist. Ct. App. 5th Dist. 2006); Whalen v. State, 895 So. 2d 1222 (Fla. Dist. Ct. App. 2d Dist. 2005).

72 See, McCloud v. State, 803 So. 2d 821 (Fla. Dist. Ct. App. 5th Dist. 2001) (penetration is an alternative element of sexual battery and so a general verdict is insufficient to show that penetration occurred when jury could have convicted based on penetration or contact).

73 Knarich v. State, 866 So. 2d 165 (Fla. Dist. Ct. App. 2d Dist. 2004) (if jury properly instructed in case of handling and fondling a child under 16 years of age in a lewd and lascivious manner, then it necessarily had to find sexual contact to sustain guilty verdict, then verdict is sufficient basis for sexual contact points); Cameron v. State, 804 So. 2d 338 (Fla. Dist. Ct. App. 4th Dist. 2001) (jury conviction on UBAL manslaughter sufficient jury finding to authorize enhancement beyond statutory maximum based on death points); Tucker v. State, 726 So. 2d 768 (Fla. 1999) (jury verdict finding defendant “guilty of attempted first-degree murder with a firearm” sufficient to increase permissible sentencing range based on defendant’s use of firearm, even though verdict form not technically a special verdict form).

74 See, Hindenach v. State, 807 So. 2d 739 (Fla. Dist. Ct. App. 4th Dist. 2002).

75 Stubbs v. State, 951 So. 2d 910 (Fla. Dist. Ct. App. 2d Dist. 2007).

76 Fitzhugh v. State, 698 So. 2d 571 (Fla. Dist. Ct. App. 1st Dist. 1997).

77 Galindez v. State, 955 So. 2d 517 (Fla. 2007).

78 Galindez v. State, 955 So. 2d 517, 523 (Fla. 2007); see also, Rouse v. State, 965 So. 2d 201 (Fla. Dist. Ct. App. 5th Dist. 2007).

79 Sec. 921.0021(7)(c) & (d), F.S.

80 Sec. 921.0021(7)(b), F.S.; Fla. R. Crim. P. 3.704(d)(9).

81 Sec. 921.0021(7)(c), F.S.

82 See, Lewis v. State, 898 So. 2d 1081 (Fla. Dist. Ct. App. 4th Dist. 2005).

83 Sec. 921.0021(7)(d), F.S.

84 See, e.g., Knarich v. State, 866 So. 2d 165 (Fla. Dist. Ct. App. 2d Dist. 2004) (conviction based on fondling a child’s buttocks in a lewd and lascivious manner supports scoring of victim injury points for sexual contact); Altman v. State, 852 So. 2d 870 (Fla. Dist. Ct. App. 4th Dist. 2003) (defendant tongue-kissing victim and rubbing crotch against victim’s crotch and buttocks while both clothed); Fretwell v. State, 852 So. 2d 292 (Fla. Dist. Ct. App. 4th Dist. 2003) (touching clothed buttocks of child); Seagrave v. State, 802 So. 2d 281 (Fla. 2001) (rubbing the buttocks of victim and placing victim’s hand on defendant’s clothed penis); Fredette v. State, 786 So. 2d 27 (Fla. Dist. Ct. App. 5th Dist. 2001) (touching victim’s vaginal area); Kitts v. State, 766 So. 2d 1067 (Fla. Dist. Ct. App. 5th Dist. 2000) (fondling and kissing of breasts); Louis v. State, 764 So. 2d 930 (Fla. Dist. Ct. App. 4th Dist. 2000) (touching victim’s chest through shirt, abdomen, and genital area); Blackburn v. State, 762 So. 2d 989 (Fla. Dist. Ct. App. 5th Dist. 2000) (rubbing erect penis on victim’s clothed back); Vural v. State, 717 So. 2d 65 (Fla. Dist. Ct. App. 3d Dist. 1998) (forcing victim to handle and masturbate defendant); Mackey v. State, 516 So. 2d 330 (Fla. Dist. Ct. App. 1st Dist. 1987) (touching victim about the crotch); O’Bright v. State, 508 So. 2d 385 (Fla. Dist. Ct. App. 1st Dist. 1987) (defendant fondling victim’s genitals and having victim fondle defendant’s genitals); Beasley v. State, 503 So. 2d 1347 (Fla. Dist. Ct. App. 5th Dist. 1987) (opening victim’s legs and starting to pull down victim’s bathing suit and shorts).

85 Lowman v. State, 720 So. 2d 1105 (Fla. Dist. Ct. App. 2d Dist. 1998).

86 See, Bennett v. State, 971 So. 2d 196 (Fla. Dist. Ct. App. 1st Dist. 2007); Marcado v. State, 735 So. 2d 556 (Fla. Dist. Ct. App. 2d Dist. 1999); Vural v. State, 717 So. 2d 65 (Fla. Dist. Ct. App. 3d Dist. 1998).

87 Clifford v. State, 518 So. 2d 983 (Fla. Dist. Ct. App. 2d Dist. 1988) (principal to sexual battery).

88 McMillan v. State, 896 So. 2d 873 (Fla. Dist. Ct. App. 2d Dist. 2005) (promoting sexual performance by a child).

89 See, Chatman v. State, 943 So. 2d 327 (Fla. Dist. Ct. App. 4th Dist. 2006).

90 Sec. 921.0024, F.S.; Fla. R. Crim. P. 3.704 (d)(9).

91 Gonsalves v. State, 830 So. 2d 265 (Fla. Dist. Ct. App. 2d Dist. 2002).

92 Lane v. State, 981 So. 2d 596 (Fla. Dist. Ct. App. 1st Dist. 2008).

93 Sims v. State, 869 So. 2d 45 (Fla. Dist. Ct. App. 5th Dist. 2004), review granted 926 So. 2d 1270 (Fla. 2006).

94 Fla. R. Crim. P. 3.704(d)(9).

95 Aponte v. State, 810 So. 2d 1008 (Fla. Dist. Ct. App. 4th Dist. 2002).

96 Coronado v. State, 654 So. 2d 1267 (Fla. Dist. Ct. App. 2d Dist. 1995).

97 See, Searles v. State, 816 So. 2d 793 (Fla. Dist. Ct. App. 2d Dist. 2002) (driving under the influence with serious bodily injury), quashed on other grounds, 885 So. 2d 338 (Fla. 2004); Key v. State, 837 So. 2d 535 (Fla. Dist. Ct. App. 2d Dist. 2003) (aggravated battery with serious bodily injury).

98 Owens v. State, 289 So. 2d 472, 474 (Fla. Dist. Ct. App. 2d Dist. 1974); see also, Anderson v. State, 291 N.E. 2d 579 (Ind. App. 1973).

99 Owens v. State, 289 So. 2d 472 (Fla. Dist. Ct. App. 2d Dist. 1974).

100 See, People v. Smith, 6 Ill. App. 3d 259, 285 N.E. 2d 460 (Ill. App. 1972); Keef v. State, 220 Ga. App. 134, 469 S.E. 2d 318 (1996).

101 Ely v. State, 719 So. 2d 11 (Fla. Dist. Ct. App. 2d Dist. 1998) (evidence of a broken nose, chipped teeth and bruises supports an assessment of 40 points for severe injury); see also, Fleming v. State, — So. 2d —, 2006 WL 1041164 (Fla. Dist. Ct. App. 1st Dist. 2006), review granted, 4 So. 3d 677 (Fla. 2009) and decision approved State v. Fleming, 61 So. 3d 399 (Fla. 2011) (unpublished opinion).

102 Black’s L. Dict. 462 (6th Ed. 1990).

103 Bethlehem-Sparrows Point Shipyard v. Damasiewicz, 187 Md. 474, 50 A. 2d 799 (Ct. App. Md. 1947).

104 Bethlehem-Sparrows Point Shipyard v. Damasiewicz, 187 Md. 474, 50 A. 2d 799 (Ct. App. Md. 1947).

105 See, Gillman v. Gillman, 319 So. 2d 165 (Fla. Ct. App. 1st Dist. 1975).

106 See, McDonald v. State, 520 So. 2d 668 (Fla. Dist. Ct. App. 1st Dist. 1988); Vandeneynden v. State, 478 So. 2d 429 (Fla. Dist. Ct. App. 5th Dist. 1985).

107 See, Tillman v. State, 819 So. 2d 913 (Fla. Dist. Ct. App. 3d Dist. 2002).

108 See, Poole v. State, 753 So. 2d 698 (Fla. Dist. Ct. App. 4th Dist. 2000); Kingsley v. State, 682 So. 2d 641 (Fla. Dist. Ct. App. 5th Dist. 1996).

109 Sec. 921.0021(15), F.S.; Fla. R. Crim. P. 3.704(d)(14).

110 Sec. 921.0021(2), F.S.; Fla. R. Crim. P. 3.704(d)(6). The same definition is used with the former Guidelines. Sec. 921.0011(2), F.S.; Fla. R. Crim. P. 3.701(d)(2); Fla. R. Crim. P. Rule 3.702(d)(2); Fla. R. Crim. P. 3.703(d)(6).

111 Thorp v. State, 555 So. 2d 362 (Fla. 1990); see also, June v. State, 784 So. 2d 1257 (Fla. Dist. Ct. App. 5th Dist. 2001); Falzone v. State, 496 So. 2d 894 (Fla. Dist. Ct. App. 2d Dist. 1986).

112 Perkowski v. State, 920 So. 2d 836 (Fla. Dist. Ct. App. 4th Dist. 2006) (a sentencing court may not score as a prior conviction an offense which was committed after the primary offense); Laster v. State, 486 So. 2d 88 (Fla. Dist. Ct. App. 5th Dist. 1986).

113 Seays v. State, 789 So. 2d 1209 (Fla. Dist. Ct. App. 4th Dist. 2001) (consideration of pending attempted murder charge violated defendant’s due process rights); Reese v. State, 639 So. 2d 1067 (Fla. Dist. Ct. App. 4th Dist. 1994) (consideration of unsubstantiated allegations of misconduct at sentencing violate fundamental due process); State v. Potts, 526 So. 2d 63 (Fla. 1988) (State through criminal process may not penalize someone merely for status of being indicted or otherwise accused of a crime); Epprecht v. State, 488 So. 2d 129 (Fla. Dist. Ct. App. 3d Dist. 1986) (due process prohibits court from considering charges of which accused has been acquitted in passing sentence), citing Townsend v. Burke, 334 U.S. 736, 68 S. Ct. 1252, 92 L.Ed. 1690 (1948).

114 Whitehead v. State, 21 So. 3d 157 (Fla. Dist. Ct. App. 4th Dist. 2009) (consideration of pending charge in another county for unlawful sex acts with a minor relevant to sentencing for conduct involving minors); Jansson v. State, 399 So. 2d 1061 (Fla. Dist. Ct. App. 4th Dist. 1981) (consideration of PSI report that included arrests for which no conviction resulted).

115 Colon v. State, 909 So. 2d 484 (Fla. Dist. Ct. App. 5th Dist. 2005).

116 Heggs v. State, 759 So. 2d 620 (Fla. 2000).

117 Lyons v. State, 823 So. 2d 250 (Fla. Dist. Ct. App. 4th Dist. 2002); DeGeso v. State, 771 So. 2d 1264 (Fla. Dist. Ct. App. 2d Dist. 2000) (at sentencing, when the defendant challenges prior convictions and the accuracy of the scoresheet, the State has the burden of producing competent evidence of the disputed conviction).

118 Meehan v. State, 397 So. 2d 1214 (Fla. Dist. Ct. App. 2d Dist. 1981).

119 Chestnut v. State, 874 So. 2d 731 (Fla. Dist. Ct. App. 4th Dist. 2004).

120 Rivera v. State, 877 So. 2d 787 (Fla. Dist. Ct. App. 4th Dist. 2004).

121 See, Wencel v. State, 768 So. 2d 494, 495 (Fla. Dist. Ct. App. 4th Dist. 2000).

122 Stabile v. State, 790 So. 2d 1235, 1238 (Fla. Dist. Ct. App. 5th Dist. 2001).

123 See, Suarez v. Hillcrest Development, 742 So. 2d 423 (Fla. Dist. Ct. App. 3d Dist. 1999); Greenberg v. Bolton, 706 So. 2d 97 (Fla. Dist. Ct. App. 3d Dist. 1998); Anderson v. State, 297 So. 2d 871 (Fla. Dist. Ct. App. 2d Dist. 1974).

124 Sec. 90.502, F.S.; Cunningham v. Appel, 831 So. 2d 214 (Fla. Dist. Ct. App. 5th Dist. 2002); Kilbourne & Sons v. Kilbourne, 677 So. 2d 855 (Fla. Dist. Ct. App. 1st Dist. 1995); see also, Neu v. Miami Herald Publishing Co., 462 So. 2d 821 (Fla. 1985) (communications at public meetings are not confidential and no attorney-client privilege can arise therefrom); Mobley v. State, 409 So. 2d 1031 (Fla. 1982) (whether a communication is confidential depends on whether the person invoking the privilege knew or should have known that the privileged conversation was being overheard).

125 Watkins v. State, 516 So. 2d 1043 (Fla. Dist. Ct. App. 1st Dist. 1987), rev. den. 523 So. 2d 579 (Fla. 1988) (former counsel’s communication of trial dates to defendant was not privileged communication).

126 See, Case v. State, 865 So. 2d 557 (Fla. Dist. Ct. App. 1st Dist. 2003) (a defendant who is charged with a misdemeanor punishable by possible imprisonment is entitled to counsel unless the judge timely issues a written order guaranteeing that the defendant will never be incarcerated as a result of the conviction); Russell v. State, 786 So. 2d 54 (Fla. Dist. Ct. App. 3d Dist. 2001).

127 Burgett v. Texas, 389 U.S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258 (1967).

128 Leffew v. State, 518 So. 2d 1376, 1378 (Fla. Dist. Ct. App. 2d Dist. 1988).

129 State v. Rock, 605 So. 2d 456 (Fla. 1992); see also, State v. Beach, 592 So. 2d 237 (Fla. 1992).

130 Knarich v. State, 866 So. 2d 165 (Fla. Dist. Ct. App. 2d Dist. 2004); Contreras v. State, 749 So. 2d 524 (Fla. 2d Dist. Ct. App. 2d Dist. 1999); see also, Holybrice v. State, 753 So. 2d 621 (Fla. Dist. Ct. App. 4th Dist. 2000).

131 Knarich v. State, 866 So. 2d 165 (Fla. Dist. Ct. App. 2d Dist. 2004); Witherspoon v. State, 601 So. 2d 607 (Fla. Dist. Ct. App. 5th Dist. 1992).

132 See, Roberts v. State, 507 So. 2d 761 (Fla. Dist. Ct. App. 1st Dist. 1987); Johnson v. State, 476 So. 2d 786 (Fla. 1st Dist. 1985); Pugh v. State, 463 So. 2d 582 (Fla. Dist. Ct. App. 1st Dist. 1985).

133 State v. Peterson, 667 So. 2d 199 (Fla. 1996); see, State v. Finelli, 780 So. 2d 31 (Fla. 2001).

134 Sosnowsky v. State, 72 So. 3d 818 (Fla. Dist. Ct. App. 4th Dist. 2011).

135 Sec. 921.0021(5), F.S.; Fla. R. Crim. P. 3.704(d)(14)(A).

136 Mancini v. State, 516 So. 2d 36 (Fla. Dist. Ct. App. 5th Dist. 1987).

137 Jones v. State, 471 So. 2d 659 (Fla. Dist. Ct. App. 1st Dist. 1985).

138 See, State v. Laperreri, 710 So. 2d 119 (Fla. Dist. Ct. App. 2d Dist. 1998) (trial court was required by rule of criminal procedure to include offenses committed more than ten years prior to current offense in conviction scoresheet, and court’s failure to do so required reversal of sentence imposed, where defendant had been convicted of another crime during ten-year period).

139 See, Sec. 921.0021(5), F.S.; Fla. R. Crim. P. 3.704(d)(14)(B).

140 Graham v. State, 950 So. 2d 526 (Fla. Dist. Ct. App. 4th Dist. 2007).

141 Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

142 Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).

143 Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

144 Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

145 United States v. Tighe, 266 F.3d 1187, 1194 (9th Cir. 2001).

146 United States v. Tighe, 266 F.3d 1187 at 1198-99 (9th Cir. 2001) (Brunetti, J., dissenting).

147 See, United States v. Burge, 407 F.3d 1183 (11th Cir. 2005), certiorari denied, 126 S. Ct. 551, 163 L. Ed. 2d 647 (2005) (discussing the courts that have declined to follow the majority rationale in Tighe); United States v. Jones, 332 F.3d 688, 696 (3d Cir. 2003) (rejecting the majority’s rationale in Tighe and holding that prior juvenile adjudications are prior convictions under Apprendi); United States v. Smalley, 294 F.3d 1030, 1033 (8th Cir. 2002) (same).

148 United States v. Burge, 407 F.3d 1183 (11th Cir 2005), certiorari denied, 126 S. Ct. 551, 163 L. Ed. 2d 647 (2005) (quoting United States v. Jones, 332 F.3d 688 at 696 (3d Cir 2003)).

149 Nichols v. State, 910 So. 2d 863 (Fla. Dist. Ct. App. 1st Dist. 2005); see generally, N.C. v. Anderson, 882 So. 2d 990 (Fla. 2000) (discussing the constitutionality of Florida’s juvenile justice system).

150 Montoure v. State, 880 So. 2d 793 (Fla. Dist. Ct. App. 1st Dist. 2004); Clark v. State, 823 So. 2d 809, 812 (Fla. Dist. Ct. App. 1st Dist. 2002); Dautel v. State, 658 So. 2d 88 (Fla. 1988).

151 See, Walsh v. State, 606 So. 2d 636 (Fla. Dist. Ct. App. 5th Dist. 1992) (federal indictment reviewed for allegation of use of dangerous weapon); Rager v. State, 720 So. 2d 1134 (Fla. Dist. Ct. App. 5th Dist. 1998) (use of Ohio indictment to determine subsection under which defendant convicted).

152 Snipes v. State, 793 So. 2d 1107, 1108 (Fla. Dist. Ct. App. 1st Dist. 2001).

153 Knarich v. State, 866 So. 2d 165 (Fla. Dist. Ct. App. 2d Dist. 2004); see also, Holybrice v. State, 753 So. 2d 621 (Fla. Dist. Ct. App. 4th Dist. 2000) (because certified copy of final disposition of Georgia court reflected conviction for theft by taking with “felony sentence” of seven years, trial court was correct in designating conviction as felony, but because there was nothing in record to show or indicate degree of felony or severity level, conviction had to be scored as Level 1 under Rule 3.703(d)(15)(E)).

154 Knarich v. State, 866 So. 2d 165 (Fla. Dist. Ct. App. 2d Dist. 2004); see also, Witherspoon v. State, 601 So. 2d 607 (Fla. Dist. Ct. App. 5th Dist. 1992).

155 Frazier v. State, 515 So. 2d 1061 (Fla. Dist. Ct. App. 5th Dist. 1987).

156 Sec. 250.351(1), F.S., provides in relevant part that “Members of the Florida National Guard are subject to . . . the Uniform Code of Military Justice at all times during their enlistment or appointment, whether serving in this state or outside the state.”

157 See, Small v. United States, 544 U.S. 385, 125 S. Ct. 1752, 161 L. Ed. 2d 651, 73 USLW 429818 Fla. L. Weekly Fed. S 245 (2005).

158 See, C. Ehrhardt, Florida Evidence § 902.4 (2005 Ed.).

159 Black’s L. Dict. 676 (4th Ed. 1968).

160 Black’s L. Dict. 163 (4th Ed. 1968).

161 See, e.g., King v. Guynes, 118 La. 344, 42 So. 959 (La. 1907).

162 Sec. 90.902(3)(b) 2., F.S.

163 Van Den Borre v. State, 596 So. 2d 687 (Fla. Dist. Ct. App. 4th Dist. 1992).

164 Forehand v. State, 537 So. 2d 103 (Fla. 1989).

165 See, Carpenter v. State, 785 So. 2d 1182 (Fla. 2001).

166 Sec. 775.084(1)(e), F.S.; see, Alix v. State, 799 So. 2d 359 (Fla. Dist. Ct. App. 3d Dist. 2001) (the Canadian crime of “sexual assault” is broader than Florida’s offense of sexual battery because the Canadian offense encompasses less serious conduct that is not punishable under Florida’s sexual battery statute and therefore cannot be used a a predicate offense to sentence defendant as a habitual violent felony offender).

167 Sec. 921.0021(5), F.S.; Fla. R. Crim. P. 3.704(d)(14).

168 Waite v. City of Ft. Lauderdale, 681 So. 2d 901 (Fla. Dist. Ct. App. 4th Dist. 1996).

169 Fla. R. Crim. P. 3.704(d)(14)(C).

170 Fla. R. Crim. P. 3.704(d)(14)(C).

171 Fla. R. Crim. P. 3.704(d)(14)(D)&(E).

172 Montgomery v. State, 897 So. 2d 1282 (Fla. 2005).

173 Sanders v. State, 35 So.3d 864 (Fla. 2010).

174 Secs. 921.0021(3) and 921.0024(1)(b), F.S.; Fla. R. Crim. P. 3.704(d)(15).

175 Sec. 948.001, F.S.

176 Cannon v. State, 728 So. 2d 308 (Fla. Dist. Ct. App. 5th Dist. 1999); Annunziata v. State, 697 So. 2d 997 (Fla. Dist. Ct. App. 5th Dist. 1997).

177 See, Pierre v. State, 606 So. 2d 502 (Fla. Dist. Ct. App. 5th Dist. 1992).

178 Jones v. State, 901 So. 2d 255 (Fla. Dist. Ct. App. 4th Dist. 2005).

179 Kelly v. State, 706 So. 2d 396 (Fla. Dist. Ct. App. 1st Dist. 1998).

180 Sec. 921.0024(1)(b), F.S.

181 Fla. R. Crim. P. 3.704(d)(15)(G).

182 Flowers v. State, 586 So. 2d 1058

(Fla. 1991) (interpreting Fla. R. Crim. P. 3.701).

183 Brown v. State, 481 So. 2d 1271 (Fla. Dist. Ct. App. 5th Dist. 1986); Burke v. State, 460 So. 2d 1022 (Fla. Dist. Ct. App. 2d Dist. 1984); Addison v. State, 452 So. 2d 955 (Fla. Dist. Ct. App. 2d Dist. 1984).

184 Martinez v. State, 770 So. 2d 211 (Fla. Dist. Ct. App. 4th Dist. 2000); Williams v. State, 678 So. 2d 4 (Fla. Dist. Ct. App. 4th Dist. 1996); Burkhalter v. State, 578 So. 2d 345 (Fla. Dist. Ct. App. 1st Dist. 1991); Taylor v. State, 485 So. 2d 900 (Fla. Dist. Ct. App. 4th Dist. 1986); 15 Fla. Jur 2d Criminal Law § 2273.

185 Russell v. State, 786 So. 2d 54 (Fla. Dist. Ct. App. 3d Dist. 2001); see, Fla. R. Crim. P. 3.701(d)(6).

186 Martinez v. State, 770 So. 2d 211 (Fla. Dist. Ct. App. 4th Dist. 2000); Copeland v. State, 765 So. 2d 216 (Fla. Dist. Ct. App. 1st Dist. 2000).

187 See, Hughes v. State, 826 So. 2d 1070 (Fla. Dist. Ct. App. 1st Dist. 2002), approved, 901 So. 2d 837 (Fla. 2005).

188 Sec. 921.0021(6), F.S.; Sec. 921.0024(b), F.S.; Fla. R. Crim. P. 3.704(d)(16).

189 Sec. 921.0024(1)(b)2., F.S.

190 Campbell v. State, 745 So. 2d 399 (Fla. Dist. Ct. App. 1st Dist. 1999).

191 Brown v. State, 741 So. 2d 1242 (Fla. Dist. Ct. App. 1st Dist. 1999).

192 Barnette v. State, 642 So. 2d 575 (Fla. Dist. Ct. App. 2d Dist. 1994).

193 State v. Loesch, 726 So. 2d 853 (Fla. Dist. Ct. App. 2d Dist. 1999).

194 The assessment of community sanction points for violation of probation/community control and for new felony convictions is the same under the 1995 Sentencing Guidelines and the Criminal Punishment Code.

195 See, Murphy v. State, 761 So. 2d 1247 (Fla. Dist. Ct. App. 2d Dist. 2000); Brown v. State, 741 So. 2d 1242 (Fla. Dist. Ct. App. 1st Dist. 1999); State v. Loesch, 726 So. 2d 853 (Fla. Dist. Ct. App. 2d Dist. 1999).

196 Sec. 921.0024(1)(b), F.S.; Fla. R. Crim. P. 3.704(d)(17).

197 Torres v. State, 847 So. 2d 614 (Fla. Dist. Ct. App. 5th Dist. 2003).

198 Asbell v. State, 715 So. 2d 258 (Fla. 1998).

199 Smith v. State, 798 So. 2d 40 (Fla. Dist. Ct. App. 1st Dist. 2001), citing Thompson v. State, 756 So. 2d 39 (Fla. 2000); see also, Espiet v. State, 797 So. 2d 598 (Fla. Dist. Ct. App. 5th Dist. 2001).

200 Sec. 921.0024(1)(b), F.S.; Fla. R. Crim. P. 3.704(d)(12).

201 Fla. R. Crim. P. 3.704(d)(18).

202 See, Stafford v. State, 711 So. 2d 612 (Fla. Dist. Ct. App. 4th Dist. 1998) (enhancement for Grand Theft Motor Vehicle).

203 Spann v. State, 772 So. 2d 38 (Fla. Dist. Ct. App. 4th Dist. 2000) (quoting Smith v. State, 547 So. 2d 613 (Fla. 1989)).

204 See, State v. Whitehead, 472 So. 2d 730 (Fla. 1985).

205 Darst v. State, 816 So. 2d 680 (Fla. Dist. Ct. App. 5th Dist. 2002), decision quashed on other grounds, 837 So. 2d 394 (Fla. 2002).

206 See, Lane v. State, 973 So. 2d 654 (Fla. Dist. Ct. App. 1st Dist. 2008) (domestic violence multiplier).

207 Trotter v. State, 825 So. 2d 362 (Fla. 2002).

208 Terry v. State, 808 So. 2d 1249 (Fla. 2002).

209 The Florida Supreme Court has held that Sec. 784.07, F.S., is a reclassification statute, and not an enhancement statute, in Mills v. State, 822 So. 2d 1284 (Fla. 2002).

210 Sec. 921.0024(1)(b), F.S.; Fla. R. Crim. P. 3.704(d)(20).

211 Matthews v. State, 774 So. 2d 1 (Fla. Dist. Ct. App. 2d Dist. 2000) (when the charged crime specifically requires that the victim be a law enforcement officer, and the verdict of guilt entails a jury finding that the victim was, in fact, such an officer, the defendant is on notice that the multiplier may be used).

212 Thanonglit v. State, 838 So. 2d 1261 (Fla. Dist. Ct. App. 2d Dist. 2003).

213 Sec. 921.0024(1)(b), F.S.; Fla. R. Crim. P. 3.704(d)(19).

214 Sec. 921.0024(1)(b), F.S.; Fla. R. Crim. P. 3.704(d)(21).

215 LaFleur v. State, 812 So. 2d 545 (Fla. Dist. Ct. App. 4th Dist. 2002).

216 A “criminal gang” is a formal or informal organization, association, or group that has as one of its primary activities the commission of criminal or delinquent acts, and that consists of three or more persons who have a common name or common indentifying signs, colors, or symbols and have two or more members who, individually or collectively, engage in or have engaged in a pattern of criminal gang activity. Sec. 874.03(1), F.S.

217 Sec. 921.0024(1)(b), F.S.; Fla. R. Crim. P. 3.704(d)(22).

218 State v. O.C., 748 So. 2d 945 (Fla. 1999); see also, State v. R.D.P., 752 So. 2d 560 (Fla. 2000).

219 Amendments to Florida Rules of Criminal Procedure 3.704 and 3.992 (Criminal Punishment Code), 810 So. 2d 826 (Fla. 2001).

220 Sec. 874.04, F.S.

221 Sec. 921.0024(1)(b), F.S.; Fla. R. Crim. P. 3.704(d)(23).

222 Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); see also, Gisi v. State, 848 So. 2d 1278 (Fla. Dist. Ct. App. 2d Dist. 2003) (victim injury points); Mathew v. State, 837 So. 2d 1176 (Fla. Dist. Ct. App. 4th Dist. 2003) (domestic violence multiplier).

223 Sec. 921.0024(1)(b), F.S.; Fla. R. Crim. P. 3.704(d)(24).

224 Sec. 921.0024(2), F.S.; Fla. R. Crim. P. 3.704(d)(25).

225 Sec. 775.082(10), F.S.; Fla. R. Crim. P. 3.704(d)(29).

226 Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

227 Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).

228 See, Jones v. State, 71 So. 3d 173 (Fla. Dist. Ct. App. 1st Dist. 2011).

229 McCloud v. State, 55 So. 3d 643 (Fla. Ct. App. 5th Dist. 2011), citing United States v. Reynolds, 956 F. 2d 192, 192-93 (9th Cir. 1992); see United States v. Provenzano, 605 F.2d 85, 95 (3rd Cir.1979) (explaining that danger is not limited to physical harm; concept includes opportunity to exercise substantial and corrupting influence within labor union); United States v. Parr, 399 F. Supp. 883, 888 (W.D.Tex.1975) (“The ‘danger to … the community’ provision [in the Bail Reform Act] permits consideration of the defendant’s propensity to commit crime generally, even where only pecuniary and not physical, harm might result to the community at large.”); see also United States v. Moss, 522 F. Supp. 1033, 1035 (E.D.Pa.1981) (“It is generally agreed, of course, that a [c]ourt may refuse bail on the ground that a defendant poses a threat to the community even though the threat is pecuniary rather than physical.”), affirmed 688 F. 2d 826 (3rd Cir. 1982); United States v. Miranda, 442 F. Supp. 786, 792 (S.D.Fla.1977) (“First, it is beyond dispute that the criterion of ‘danger to the community,’ which is an explicit component of the Bail Reform Act, is not limited to the potential for doing physical harm.”).

230 Cliatt v. State, 970 So. 2d 902 (Fla. Dist. Ct. App. 5th Dist. 2007).

231 Butler v. State, 838 So. 2d 554 (Fla. 2003).

232 Butler v. State, 838 So. 2d 554 (Fla. 2003).

233 See, Fla. R. Crim. P. 3.992.

234 Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

235 Williams v. State, 907 So. 2d 1224 (Fla. Dist. Ct. App. 2d Dist. 2005).

236 See, Knarich v. State, 866 So. 2d 165 (Fla. Dist. Ct. App. 2d Dist. 2004) (if jury properly instructed in case of handling and fondling a child under 16 years of age in a lewd and lascivious manner, then it necessarily had to find sexual contact to sustain guilty verdict, then verdict is sufficient basis for sexual contact points); Cameron v. State, 804 So. 2d 338 (Fla. Dist. Ct. App. 4th Dist. 2001) (jury conviction on UBAL manslaughter sufficient jury finding to authorize enhancement beyond statutory maximum based on death points); Tucker v. State, 726 So. 2d 768 (Fla. 1999) (jury verdict finding defendant “guilty of attempted first-degree murder with a firearm” sufficient to increase permissible sentencing range based on defendant’s use of firearm, even though verdict form not technically a special verdict form).

237 Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L.Ed. 2d 403 (2004); see also, Hindenach v. State, 807 So. 2d 739 (Fla. Dist. Ct. App. 4th Dist. 2002).

238 Mays v. State, 717 So. 2d 515 (Fla. 1998).

239 See, Maddox v. State, 760 So. 2d 89 (Fla. 2000), n. 9.

240 See, Hughes v. State, 826 So. 2d 1070 (Fla. Dist. Ct. App. 1st Dist. 2002), approved by Hughes v. State, 901 So. 2d 837 (Fla. 2005); see also, Robert Batey, Sentencing Guidelines and Statutory Maximums in Florida Law: How Best to Respond to Apprendi, 74 Fla. Bar. J. 57 (November 2000).

241 Rozmestor v. State, 381 So. 2d 324 (Fla. Dist. Ct. App. 5th Dist. 1980).

242 Stroman v. State, 837 So. 2d 1070 (Fla. Dist. Ct. App. 2d Dist. 2003); Butler v. State, 548 So. 2d 780 (Fla. Dist. Ct. App. 2d Dist. 1989).

243 State v. Amico, 525 So. 2d 515 (Fla. Dist. Ct. App. 4th Dist. 1988).

244 Fla. R. Crim. P. 3.704(d)(30).

245 Roberts v. State, 644 So. 2d 81 (Fla. 1994).

246 Carrigan v. State, 873 So. 2d 605 (Fla. Dist. Ct. App. 5th Dist. 2004).

247 Fla. R. Crim. P. 3.704(d)(27).

248 Fla. R. Crim. P. 3.704(d)(26).

249 Williams v. State, 784 So. 2d 524 (Fla. Dist. Ct. App. 4th Dist. 2001).

250 Sec. 921.002(1)(f), F.S.; Fla. R. Crim. P. 3.704(d)(27).

251 See, Jones v. State, 813 So. 2d 22 (Fla. 2001).

252 Sec. 921.002(3), F.S.; Fla. R. Crim. P. 3.704(d)(27)(A) &; (B).

253 Sec. 921.0024(3), F.S.; Fla. R. Crim. P. 3.704(d)(4).

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