Kelly v. State

796 So. 2d 578, 2001 Fla. App. LEXIS 12553, 2001 WL 1045014

Opinion

NORTHCUTT, Judge.

In December 1997, a jury found Michael Kelly guilty of robbery with a firearm, a violation of section 812.13, Florida Statutes (1995). The court sentenced him to the maximum sentence permitted by the 1995 guidelines, but that sentence was reversed pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000). Kelly v. State, 765 So.2d 882 (Fla. 2d DCA 2000). At resentencing, the State prepared a new scoresheet under the 1994 guidelines. Over Kelly’s objection, 18 points for the use of a firearm were added to the scoresheet. In this appeal, Kelly challenges the addition of those points, and the State concedes error.

Section 921.0014(1), Florida Statutes (1995), and Florida Rule of Criminal Procedure 3.702(12) provide that 18 points are assessed for possession of firearm during the commission of any felony other than those enumerated in section 775.087(2), Florida Statutes (1995). Kelly’s crime, robbery, is one of the enumerated felonies. Therefore, the 18 points were incorrectly added to his scoresheet. Gibson v. State, 713 So.2d 1069 (Fla. 2d DCA 1998). We reverse and remand for resentencing under a properly prepared scoresheet.

Reversed and remanded.

ALTENBERND, A.C.J., and CASANUEVA, J., Concur.