Opinion
No. BC-192.
July 16, 1985. Rehearing Denied August 12, 1985.
Appeal from the Circuit Court, Clay County, Lamar Winegeart, Jr., J.
Michael E. Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., John M. Koenig, Jr., Asst. Atty. Gen., for appellee.
Defendant appeals a sentence imposed pursuant to the sentencing guidelines. We reverse and remand for resentencing.
Defendant was charged by information with sexual battery upon a child under the age of eleven years, alleged to have occurred on April 29, 1984. In July 1984, defendant pled nolo contendere to the lesser offense of lewd assault upon a child and a sentencing hearing was conducted on August 3, 1984. The sentencing guidelines scoresheet utilized at the sentencing hearing reflected a total of 183 points and a recommended range of community control or twelve to thirty months incarceration. Appellant was adjudicated guilty and sentenced to thirty months in state prison, to be followed by twelve and one half years probation.
The scoresheet utilized by the trial court was a revised version of the Category 2 scoresheet, which became effective on July 1, 1984. Defendant argues on appeal that the trial court erred in failing to use the version of the sentencing guidelines scoresheet for Category 2 offenses which was in effect at the time of the crime. We agree.
The Florida Bar: Amendment of Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So.2d 824 (Fla. 1984).
This court has held that the sentencing guidelines may not be applied retroactively. Jackson v. State, 454 So.2d 691 (Fla. 1st DCA 1984); Randolph v. State, 458 So.2d 64 (Fla. 1st DCA 1984). Further, both this court and the Fourth District have recently held that the sentencing guidelines in effect at the commission of the crime are to be applied. Dewberry v. State, 472 So.2d 792 (Fla. 1st DCA 1985); Miller v. State, 468 So.2d 1018 (Fla. 4th DCA 1985); Taft v. State, 468 So.2d 472 (Fla. 4th DCA 1985).
Accordingly, we reverse and remand for resentencing in accord with the sentencing guideline scoresheet in effect on April 29, 1984, the date of the commission of the crime.
ERVIN and JOANOS, JJ., concur.