Kolbe v. State

480 So. 2d 694, 11 Fla. L. Weekly 96

• Court: District Court of Appeal of Florida
• Decided: December 31, 1985
• Docket: 84-2549
• Status: Published

Opinion

480 So.2d 694 (1985)

Hans Richard KOLBE, Appellant,
v.
STATE of Florida, Appellee.

No. 84-2549.

District Court of Appeal of Florida, Fourth District.

December 31, 1985.

Richard L. Jorandby, Public Defender and Gary Caldwell, Asst. Public Defender, West Palm Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee and Robert L. Teitler, Asst. Atty. Gen., West Palm Beach, for appellee.

HERSEY, Chief Judge.

As a result of a finding of violation of probation Hans Richard Kolbe was sentenced under the guidelines for a felony offense committed before October 1, 1983. He appeals on the basis that he did not affirmatively elect to be sentenced under the guidelines as required under such circumstances by section 921.001(4)(a), Florida Statutes (1983). It also appears that no guidelines scoresheet was available to the trial court at the time of sentencing, a violation of rule 3.701 d.1., Florida Rules of Criminal Procedure.

Review of the transcript reveals only one colloquy that could reasonably be interpreted as a reference to sentencing under the guidelines:

THE COURT: I believe he is coming under the first category?

MR. GAETA: That's correct.

THE COURT: Bumped up one category he will receive a sentence of 30 months with the Department of Corrections in the State Prison.

This is inadequate to demonstrate an affirmative election of guidelines sentencing. See, e.g., Rodriguez v. State, 458 So.2d 899 (Fla. 2d DCA 1984); Jordan v. State, 460 So.2d 477 (Fla. 2d DCA 1984).

It was also reversible error not to have a guidelines scoresheet available at sentencing. Finklea v. State, 471 So.2d 608 (Fla. 1st DCA 1985); Myrick v. State, 461 So.2d 1359 (Fla. 2d DCA 1984).

We therefore vacate the sentence and remand for resentencing.

REVERSED AND REMANDED.

HURLEY and DELL, JJ., concur.