Opinion
No. 87-2267.
August 4, 1988.
Appeal from the Circuit Court, Orange County, Ted P. Coleman, J.
James B. Gibson, Public Defender, and Barbara Condon, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Colin Campbell, Asst. Atty. Gen., Daytona Beach, for appellee.
This is an appeal from a sentence. Appellant was convicted of leaving the scene of an accident involving injuries. § 316.027, Fla. Stat. (1983). The sentencing judge scored points on the sentencing guidelines scoresheet for victim injury. This was error because victim injury is not an element of the crime. Benedict v. State, 475 So.2d 1000 (Fla. 5th DCA 1985); Motyka v. State, 457 So.2d 1114 (Fla. 1st DCA 1984). The sentence is vacated and the cause remanded for resentencing.
SENTENCE VACATED, REMANDED.
DANIEL, J., concurs.
ORFINGER, J., dissents with opinion.
I dissent because no purpose is served by vacating the sentence and sending it back for resentencing. With the points for victim injury included, the recommended sentence was any non-state prison sanction. With these points excluded, the recommended sentence will be exactly the same. There is nothing lower for a felony conviction. The trial judge bumped the sentence into the next higher cell because of defendant's violation of probation, which he can do. Therefore, with or without the points for victim injury, the sentence will be the same, and is a lawful sentence. I would affirm.