Opinion
No. 94-945.
June 19, 1996.
Appeal from the Circuit Court, Duval County, David Wiggins, J.
Louis O. Frost, Jr., Public Defender; Ward L. Metzger, Assistant Public Defender, Jacksonville, for Appellant.
Robert A. Butterworth, Attorney General; James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appellee.
The appellant contends, and the state concedes, that his guidelines sentence for armed sexual battery and armed burglary is based upon an error in the scoring of a prior Georgia burglary offense on his guidelines score-sheet. Specifically, the Georgia burglary was scored as a second-degree felony on the theory that the burglarized structure was a dwelling. However, as the record reveals and the state concedes, the Georgia statute does not recognize such a distinction and does not contain a separate element requiring that the burglarized structure be a dwelling. In Dautel v. State, 658 So.2d 88 (Fla. 1995), the supreme court held that only the elements of the out-of-state crime, and not the underlying facts, should be considered in determining the degree of the analogous Florida offense on a guidelines scoresheet. Consequently, the Georgia offense must be scored as a third-degree felony.
Accordingly, we vacate appellant's sentence and remand the case for resentencing, with instructions to score the Georgia offense as a third-degree felony.
MINER, ALLEN and MICKLE, JJ., concur.