Robertson v. State

559 So. 2d 352, 1990 Fla. App. LEXIS 2313, 1990 WL 39890

• Court: District Court of Appeal of Florida
• Decided: April 4, 1990
• Docket: No. 89-1467
• Status: Published

Opinion

SHIVERS, Chief Judge.

Appellant defendant appeals the trial court’s use of a category 9 sentencing guideline scoresheet to impose sentence for inmate possession of contraband (section 944.47(l)(c), Florida Statutes), arguing that the court should instead have used a category 8 scoresheet. We disagree, and affirm the sentence.

Rule 3.701(c), Fla.R.Crim.P., lists nine offense categories corresponding to the nine different sentencing guideline scoresheets, including:

Category 8: Weapons: Chapter 790 and section 944.40.

Category 9: All other felony offenses.

The Committee Note to Rule 3.701(c) reads, in full:

(c) Only one category is proper in any particular case. Category 9, “All other felony offenses,” should be used only when the primary offense at conviction is not included in another, more specific category.

Since the statutory offense to which the appellant entered his plea is not specifically included in either the category 8 scoresheet or in any other offense category listed under Rule 3.701(c), the trial court was correct in using a category 9 scoresheet. Although appellant’s offense did involve a weapon, it is clear that category 8 score-sheets apply only to those weapons offenses which constitute violations of Chapter 790 or of section 944.40, and do not include violations of section 944.47. See Hutcheson v. State, 501 So.2d 190 (Fla. 5th DCA 1987).

Accordingly, appellant’s sentence is hereby AFFIRMED.

WIGGINTON and BARFIELD, JJ., concur.