Aleman v. State

District Court of Appeal of Florida

Aleman v. State

535 So. 2d 342, 13 Fla. L. Weekly 2747, 1988 Fla. App. LEXIS 5531, 1988 WL 133889

CourtDistrict Court of Appeal of Florida

DecidedDecember 16, 1988

DocketNo. 87-857

StatusPublished

This text of 535 So. 2d 342 (Aleman v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Aleman v. State, 535 So. 2d 342, 13 Fla. L. Weekly 2747, 1988 Fla. App. LEXIS 5531, 1988 WL 133889 (Fla. Ct. App. 1988).

Pincite

Opinion

FRANK, Acting Chief Judge.

Aleman, who was convicted of and sentenced for sexual battery and burglary of a dwelling, presents two issues on appeal. The first, that he was incompetent to be sentenced, is without merit. The second, that the judge erroneously scored his prior record, requires reversal of his sentence.

Aleman had been convicted in Texas of burglary of a habitation, a first degree felony under that state’s law. The parallel Florida Statute — burglary of a dwelling — is a second degree felony. Hence, the prior conviction should have been entered as a second degree felony on the scoresheet. Rule 3.701(d)(5), Fla.R.Crim.P. The trial court, however, erroneously imported some factual considerations into the conviction, i.e., that the victim had been kidnapped, the basis for which was a count of the Texas indictment that had been dismissed. Thus he scored the burglary conviction as a first degree felony, which was patent error because the charge which might have elevated the felony from second to first degree in Florida had been dismissed.

Accordingly, we affirm the defendant’s conviction but reverse the sentence and remand for resentencing under a properly prepared guidelines scoresheet.

THREADGILL and PARKER, JJ., concur.

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FRANK, Acting Chief Judge.

Aleman, who was convicted of and sentenced for sexual battery and burglary of a dwelling, presents two issues on appeal. The first, that he was incompetent to be sentenced, is without merit. The second, that the judge erroneously scored his prior record, requires reversal of his sentence.

Aleman had been convicted in Texas of burglary of a habitation, a first degree felony under that state’s law. The parallel Florida Statute — burglary of a dwelling — is a second degree felony. Hence, the prior conviction should have been entered as a second degree felony on the scoresheet. Rule 3.701(d)(5), Fla.R.Crim.P. The trial court, however, erroneously imported some factual considerations into the conviction, i.e., that the victim had been kidnapped, the basis for which was a count of the Texas indictment that had been dismissed. Thus he scored the burglary conviction as a first degree felony, which was patent error because the charge which might have elevated the felony from second to first degree in Florida had been dismissed.

Accordingly, we affirm the defendant’s conviction but reverse the sentence and remand for resentencing under a properly prepared guidelines scoresheet.

THREADGILL and PARKER, JJ., concur.

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Bluebook (online)

535 So. 2d 342, 13 Fla. L. Weekly 2747, 1988 Fla. App. LEXIS 5531, 1988 WL 133889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aleman-v-state-fladistctapp-1988.