Opinion
No. 87-353.
November 25, 1987.
Appeal from the Circuit Court for Orange County; Lawrence R. Kirkwood, Judge.
James B. Gibson, Public Defender and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, Joseph N. D'Achille, Jr., and Kellie A. Nielan, Asst. Attys. Gen., Daytona Beach, for appellee.
Affirmed.
UPCHURCH, C.J., and ORFINGER, J., concur.
SHARP, J., dissents with opinion.
I would quash the sentence imposed by the trial court (3 1/2 years), and once again remand for resentencing. This time, the error is the lower court's failure to use the sentencing guidelines in effect at the time the crime was committed, rather than those in effect at the time of sentencing. Miller v. Florida, ___ U.S. ___, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987).
Corry v. State, 497 So.2d 1343 (Fla. 5th DCA 1986).
Although the 3 1/2 year sentence Corry received was the maximum sentence possible under the applicable guidelines, and thus in a sense "harmless error," Corry is entitled to be resentenced under a properly prepared scoresheet so the trial court can make a fully informed decision. Corry had received the minimum sentence under the inapplicable guidelines. Upon resentencing, the court might similarly choose the minimum sentence in the applicable guidelines range, i.e. 2 1/2 years.
Davis v. State, 493 So.2d 82 (Fla. 1st DCA 1986).