Opinion
Case No. 2D99-4784.
Opinion filed October 19, 2001.
Appeal from the Circuit Court for Lee County; William J. Nelson, Judge.
Terrence E. Kehoe of Law Offices of Terrence E. Kehoe, Orlando, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Anne S. Weiner, Assistant Attorney General, Tampa, for Appellee.
Joseph Gonsalves appeals his convictions and sentences for leaving the scene of an accident resulting in death and driving with a revoked license and causing a death. We affirm the convictions, reverse the sentences, and remand for resentencing.
The first issue presented in this appeal contends that fundamental error requires a reversal of Mr. Gonsalves' convictions because the record on appeal failed to reflect that the prospective jurors were sworn prior to questioning as required by Florida Rule of Criminal Procedure 3.300(a). The purpose of this oath is to ensure that prospective jurors truthfully answer questions about their qualifications to serve as part of a particular jury. The record on appeal initially lacked any record of this important component of a criminal jury trial. The State subsequently supplemented the record, and we are satisfied that there was compliance with rule 3.300(a). However, difficult problems were presented by this issue because of an apparently common practice in the trial courts to comply with rule 3.300(a) in a common jury pool room but then fail to recite the compliance for the record in each case. In order to make a record on appeal that reflects compliance with rule 3.300(a), we encourage trial judges to include on the record either the swearing of the prospective jurors or to recite that the prospective jurors were properly sworn prior to questioning.
We have considered each of Mr. Gonsalves' issues addressed to his convictions and reject them without discussion. Mr. Gonsalves also presented several issues related to his sentences; two of his points warrant discussion.
In the charging information, the State alleged that Mr. Gonsalves caused "the death of another human being, to wit: J.R. Brown or Ruth Ann Brown." Significantly for Mr. Gonsalves' argument, the information alleged the death of a single human being. In preparing the sentencing guidelines scoresheet, victim injury points were included for two deaths. Mr. Gonsalves contends that because the information only charged one death, victim injury points could be included for only one death, not two. Contrary to his position, the Criminal Punishment Code states that "[v]ictim injury must be scored for each victim physically injured and for each offense resulting in physical injury whether there are one or more victims." Fla.R.Crim.P. 3.704(d)(9). Accordingly, the rule clearly authorizes the scoring of victim injury points for each victim physically injured in the course of an offense without regard to the allegations of the information.
Mr. Gonsalves correctly contends that his prior North Carolina conviction was improperly scored as a felony conviction because the State failed to meet its burden of proving the level of the conviction. In order to score a prior conviction from a foreign jurisdiction as prior record, the trial court must determine "whether the conviction is analogous to a Florida statute." Dautel v. State, 658 So.2d 88, 91 (Fla. 1995). "[O]nly the elements of the out-of-state crime, and not the underlying facts, should be considered in determining whether the conviction is analogous to a Florida Statute for the purpose of calculating points for a sentencing guidelines scoresheet." Id. Here, the State failed to establish that Mr. Gonsalves' prior North Carolina conviction was analogous to a Florida felony. When the points for a prior felony conviction are removed, the imposed sentence would be an upward departure from the guidelines. Therefore, we reverse and remand for resentencing. At resentencing, if the State is unable to establish that the North Carolina prior conviction is analogous to a Florida felony, Mr. Gonsalves shall be resentenced under a new scoresheet.
Accordingly, we affirm the convictions, reverse the sentences, and remand for resentencing.
THREADGILL and FULMER, JJ., Concur.