Matthews v. State

714 So. 2d 469, 1998 Fla. App. LEXIS 4749, 1998 WL 204666

• Court: District Court of Appeal of Florida
• Decided: April 29, 1998
• Docket: No. 97-1434
• Status: Published

Opinions

JOANOS, Judge.

In this appeal from convictions and sentences for aggravated assault on a law enforcement officer, fleeing and eluding a police officer, resisting, obstructing or opposing an officer without violence, criminal mischief, and throwing a deadly missile, appellant contends the trial court erred in assessing victim injury points when there allegedly was no evidence that the injuries were the direct result of any offense of conviction, and further erred in failing to cite statutory authority for costs. We conclude that the cost issue was not preserved with either a contemporaneous objection or a timely post conviction motion, and therefore affirm as to that issue. See section 924.051(3), Fla. Stat.; Fla. R.Crim. P. 3.800(b).

As to the assessment of the eight victim injury points, we conclude that as to four of those points, appellant failed to raise an objection before the trial court or otherwise preserve the alleged error; counsel initially drew the court’s attention to only 18 of 22 points. As to the other four points that were assessed, appellant waived any objection during the following exchange with the court:

THE COURT: A1 right. [Defense counsel], I will hear from you in terms of any disputes that you have with the guideline scoresheet.

[DEFENSE COUNSEL]: Victim injury, -18. You heard the testimony in this case and the charges we have here. I don’t think they support the addition of that 18 points. Assault and fleeing and eluding, resisting without violence, criminal mischief and throwing a deadly missile in an occupied vehicle, I don’t know where that is coming up.

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THE COURT: This reflects total points for victim injury at 22. Someone was calculated at slight for four points, plus 18 for moderate.

[DEFENSE COUNSEL]: Yes, sir.

THE COURT: How many victim injuries are we scoring here, two?

[PROSECUTOR]: Two.

THE COURT: Okay, I will agree that the guideline scoresheet be modified to reflect total victim injury points of 88 — excuse me, of eight.

[DEFENSE COUNSEL]: Eight. It will be two slight.

THE COURT: For a total of eight points. Based on my recollection of the testimony, I find no support for moderate injury. [Prosecutor], let me give this back to you and you recalculate with that. [Defense],

[DEFENSE COUNSEL]: Yes, sir.

THE COURT: Have you reviewed the modified scoresheet?

[DEFENSE COUNSEL]: Yes, sir.

THE COURT: Do you agree with the calculations?

[DEFENSE COUNSEL]: Yes, sir.

AFFIRMED.

MINER, J., concurs. WEBSTER, J., concurring in part and dissenting in part with written opinion.