Nunez v. State

District Court of Appeal of Florida

Nunez v. State

793 So. 2d 96, 2001 WL 912647

CourtDistrict Court of Appeal of Florida

DecidedAugust 15, 2001

Docket2D00-2760

StatusPublished

Cited by1 cases

This text of 793 So. 2d 96 (Nunez 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

Nunez v. State, 793 So. 2d 96, 2001 WL 912647 (Fla. Ct. App. 2001).

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Opinion

793 So.2d 96 (2001)

Keniel NUNEZ, Appellant,
v.
STATE of Florida, Appellee.

No. 2D00-2760.

District Court of Appeal of Florida, Second District.

August 15, 2001.

*97 James Marion Moorman, Public Defender, and Jean M. Henne, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.

STRINGER, Judge.

Appellant, Keniel Nunez, challenges his conviction and sentence for attempted robbery with a firearm. We find no merit in his contention that the trial court erred in denying his motion for judgment of acquittal and in failing to give his requested jury instruction as to independent acts. Thus, we affirm his conviction without further comment. We, however, remand this case for resentencing because the trial court improperly added 120 victim injury points to appellant's scoresheet due to the victim's death.

In addition to being charged with attempted robbery with a firearm, appellant was charged with second-degree murder for a death which occurred during the robbery. The jury acquitted appellant of the second-degree murder charge. Since the jury acquitted appellant of second-degree murder, the trial court should not have assessed 120 victim injury points for the victim's death. See Truitt v. State, 787 So.2d 53 (Fla. 2d DCA 2001) (holding that where the defendant was charged with second-degree murder but only convicted of aggravated battery, the trial court erred in imposing 120 victim injury points); Key v. State, 779 So.2d 525 (Fla. 2d DCA 2000). Accordingly, we remand this case for resentencing without assessing 120 victim injury points for the victim's death. On remand, the trial court may impose other appropriate victim injury points.

Affirmed in part, reversed in part, and remanded for resentencing.

THREADGILL, A.C.J., and GREEN, J., Concur.

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793 So.2d 96 (2001)

Keniel NUNEZ, Appellant,
v.
STATE of Florida, Appellee.

No. 2D00-2760.

District Court of Appeal of Florida, Second District.

August 15, 2001.

*97 James Marion Moorman, Public Defender, and Jean M. Henne, Assistant Public Defender, Bartow, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.

STRINGER, Judge.

Appellant, Keniel Nunez, challenges his conviction and sentence for attempted robbery with a firearm. We find no merit in his contention that the trial court erred in denying his motion for judgment of acquittal and in failing to give his requested jury instruction as to independent acts. Thus, we affirm his conviction without further comment. We, however, remand this case for resentencing because the trial court improperly added 120 victim injury points to appellant's scoresheet due to the victim's death.

In addition to being charged with attempted robbery with a firearm, appellant was charged with second-degree murder for a death which occurred during the robbery. The jury acquitted appellant of the second-degree murder charge. Since the jury acquitted appellant of second-degree murder, the trial court should not have assessed 120 victim injury points for the victim's death. See Truitt v. State, 787 So.2d 53 (Fla. 2d DCA 2001) (holding that where the defendant was charged with second-degree murder but only convicted of aggravated battery, the trial court erred in imposing 120 victim injury points); Key v. State, 779 So.2d 525 (Fla. 2d DCA 2000). Accordingly, we remand this case for resentencing without assessing 120 victim injury points for the victim's death. On remand, the trial court may impose other appropriate victim injury points.

Affirmed in part, reversed in part, and remanded for resentencing.

THREADGILL, A.C.J., and GREEN, J., Concur.

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793 So. 2d 96, 2001 WL 912647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nunez-v-state-fladistctapp-2001.

Opinion

Keniel NUNEZ, Appellant, v. STATE of Florida, Appellee.

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Cite This Page — Counsel Stack

Keniel NUNEZ, Appellant,
v.
STATE of Florida, Appellee.