Rubier v. State

District Court of Appeal of Florida

Rubier v. State

530 So. 2d 523, 13 Fla. L. Weekly 2150, 1988 Fla. App. LEXIS 4078, 1988 WL 93732

CourtDistrict Court of Appeal of Florida

DecidedSeptember 13, 1988

DocketNo. 87-722

StatusPublished

Cited by1 cases

This text of 530 So. 2d 523 (Rubier 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.

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Rubier v. State, 530 So. 2d 523, 13 Fla. L. Weekly 2150, 1988 Fla. App. LEXIS 4078, 1988 WL 93732 (Fla. Ct. App. 1988).

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Opinion

PER CURIAM.

We affirm appellant’s conviction of second-degree murder (of Caceres), attempted third-degree murder (of Perez), shooting into an occupied vehicle and displaying a firearm while committing a felony.

In computing appellant’s sentence for attempted third-degree murder, the trial judge included 21 points for the injury to Perez, which raised appellant’s guidelines sentence to the 17-22 years range. The guidelines in effect in January, 1986, the date of the offenses and thus applicable,¹ provided: “Victim injury shall be scored if it is an element of any offenses at conviction.” (e.s.)²

The state concedes that victim injury, not being an essential element of the attempted third-degree murder of Perez, cannot therefore be counted under the applicable guidelines. Exclusion of the 21 points for such injury thus reduces the guidelines sentencing range to the 12-17 years cell.

Accordingly, we affirm the convictions herein but vacate the sentences imposed and remand for appropriate sentencing within the 12-17 years range.

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PER CURIAM.

We affirm appellant’s conviction of second-degree murder (of Caceres), attempted third-degree murder (of Perez), shooting into an occupied vehicle and displaying a firearm while committing a felony.

In computing appellant’s sentence for attempted third-degree murder, the trial judge included 21 points for the injury to Perez, which raised appellant’s guidelines sentence to the 17-22 years range. The guidelines in effect in January, 1986, the date of the offenses and thus applicable,¹ provided: “Victim injury shall be scored if it is an element of any offenses at conviction.” (e.s.)²

The state concedes that victim injury, not being an essential element of the attempted third-degree murder of Perez, cannot therefore be counted under the applicable guidelines. Exclusion of the 21 points for such injury thus reduces the guidelines sentencing range to the 12-17 years cell.

Accordingly, we affirm the convictions herein but vacate the sentences imposed and remand for appropriate sentencing within the 12-17 years range.

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Bluebook (online)

530 So. 2d 523, 13 Fla. L. Weekly 2150, 1988 Fla. App. LEXIS 4078, 1988 WL 93732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rubier-v-state-fladistctapp-1988.

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