Summary
In Kirtsey this court recognized that, when it previously reversed a kidnapping charge and affirmed the other convictions and sentences, it failed to consider that the removal of the kidnapping conviction from the scoresheet might require a lesser guidelines sentence.
Summary of this case from Schiming v. StateOpinion
No. 89-21.
December 14, 1989.
Appeal from the Circuit Court for Volusia County; Uriel C. Blount, Jr., Judge.
James B. Gibson, Public Defender and Daniel J. Schafer, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee and Paula C. Coffman, Asst. Atty. Gen., Daytona Beach, for appellee.
James Floyd Kirtsey appeals from an order denying his motion to correct sentence. Kirtsey was originally convicted of kidnapping, use of a firearm in commission of a felony and attempted robbery with a firearm. However, this court in Kirtsey v. State, 511 So.2d 744 (Fla. 5th DCA 1987) reversed the kidnapping count but provided:
Accordingly, we reverse the kidnapping conviction, but affirm the convictions and sentences for attempted robbery and use of a firearm. (emphasis added).
In affirming the "sentences" for the remaining crimes, this court failed to consider that by removing the kidnapping from the scoresheet, a lesser guideline sentence might be required. The trial judge, reasoning that this court had affirmed the sentences, held that the defendant was entitled to no further relief. We disagree.
REMANDED for resentencing within the appropriate guideline range.
DANIEL, C.J., and GOSHORN, J., concur.