State v. Lindsay

Full title: STATE OF FLORIDA, Appellant/Cross-Appellee, v. JERRY LINDSAY…

Court: District Court of Appeal of Florida, Fifth District

Date published: Feb 11, 2000

No. 5D99-1793 (Fla. Dist. Ct. App. Feb. 11, 2000)

Opinion

No. 5D99-1793.

Opinion filed February 11, 2000.

Appeal from the Circuit Court for Brevard County, J. Preston Silvernail, Judge.

Robert A. Butterworth, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.

James B. Gibson, Public Defender, and Jane C. Almay-Loewinger, Assistant Public Defender, Daytona Beach, for Appellee/Cross-Appellant.

HARRIS, J.

Although the State wins this moral victory, it seems to have conceded the war. The State appeals the sentence imposed on Lindsay because the court scored the wrong offense as the primary offense and because the court failed to add an additional twelve points because of a community sanction violation. See Fla. R. Crim. P. 3.703(17). We agree with the State on both issues.

The problem as we see it, however, is that the court decided to mitigate the sentence regardless of the guideline score. The State has not contested the court's right to mitigate in this case nor the court's reasons for mitigation. While we remand to the trial court for correction of the guideline scoresheet, we leave it to the trial court to determine whether a new sentencing is necessary.

REMANDED for the correction of the scoresheet.

ANTOON, C.J., and DAUKSCH, J., concur.