Babcock v. State

District Court of Appeal of Florida

Babcock v. State

666 So. 2d 953, 1996 Fla. App. LEXIS 35, 1996 WL 1731

District Court of Appeal of Florida·Decided January 4, 1996·No. No. 94-3873·Published

Opinion

PER CURIAM.

Babcock pleaded guilty to murder in the first degree, armed burglary, and possession of a firearm by a convicted felon. Babcock argues and the State concedes that he cannot be assessed points on his sentencing guidelines scoresheet for the additional offense of possession of a firearm by a convicted felon because he was sentenced on this offense as an habitual violent felony offender. See Byrd v. State, 643 So.2d 1209 (Fla. 1st DCA 1994). We remand for resentencing on the armed burglary offense due to the incorrect scoresheet. The trial judge was unaware that a departure sentence had been imposed and, upon remand, he may impose any lawful sentence originally available, including a departure sentence, provided written reasons are given. State v. Betancourt, 552 So.2d 1107 (Fla.1989); Byrd v. State, 643 So.2d 1209 (Fla. 1st DCA 1994); Kelly v. State, 616 So.2d 100 (Fla. 1st DCA 1993). We affirm in all other respects.

Affirmed in part, reversed in part, and remanded.

JOANOS, MICKLE and LAWRENCE, JJ., concur.

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PER CURIAM.

Babcock pleaded guilty to murder in the first degree, armed burglary, and possession of a firearm by a convicted felon. Babcock argues and the State concedes that he cannot be assessed points on his sentencing guidelines scoresheet for the additional offense of possession of a firearm by a convicted felon because he was sentenced on this offense as an habitual violent felony offender. See Byrd v. State, 643 So.2d 1209 (Fla. 1st DCA 1994). We remand for resentencing on the armed burglary offense due to the incorrect scoresheet. The trial judge was unaware that a departure sentence had been imposed and, upon remand, he may impose any lawful sentence originally available, including a departure sentence, provided written reasons are given. State v. Betancourt, 552 So.2d 1107 (Fla.1989); Byrd v. State, 643 So.2d 1209 (Fla. 1st DCA 1994); Kelly v. State, 616 So.2d 100 (Fla. 1st DCA 1993). We affirm in all other respects.

Affirmed in part, reversed in part, and remanded.

JOANOS, MICKLE and LAWRENCE, JJ., concur.

Babcock v. State, 666 So. 2d 953, 1996 Fla. App. LEXIS 35, 1996 WL 1731 (Fla. Ct. App. 1996).

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