Zolache v. State

District Court of Appeal of Florida

Zolache v. State

657 So. 2d 25, 1995 Fla. App. LEXIS 6105, 1995 WL 334396

District Court of Appeal of Florida·Decided June 7, 1995·No. No. 93-3604·Published·Cited by 1 cases

Opinion

FARMER, Judge.

By one view of the facts at trial and the showing made at the hearings on the motion for new trial on newly discovered evidence, this ease may appear to involve a wrongfully convicted, innocent man. But the trial judge did not think so. Because there is record evidence from which he could have properly concluded that the newly discovered evidence is not sufficiently reliable and authentic, we are unable to disturb his decision denying a new trial.

We do agree with defendant that an error in the sentencing guideline seoresheet requires resentencing. His conviction for attempted second degree murder with a firearm was scored as a life felony, but it should have been scored as first degree felony. Harris v. State, 650 So.2d 639 (Fla. 4th DCA 1995); §§ 775.087(l)(b), 777.04(4)(c), and 782.04(2), Fla.Stat. (1993). The difference in points may have affected the outcome. We therefore remand for resentencing upon a properly calculated guidelines seoresheet.

CONVICTION AFFIRMED; SENTENCE REVERSED AND REMANDED FOR RESENTENCING WITH PROPER SCORESHEET.

GUNTHER and STONE, JJ., concur.

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FARMER, Judge.

By one view of the facts at trial and the showing made at the hearings on the motion for new trial on newly discovered evidence, this ease may appear to involve a wrongfully convicted, innocent man. But the trial judge did not think so. Because there is record evidence from which he could have properly concluded that the newly discovered evidence is not sufficiently reliable and authentic, we are unable to disturb his decision denying a new trial.

We do agree with defendant that an error in the sentencing guideline seoresheet requires resentencing. His conviction for attempted second degree murder with a firearm was scored as a life felony, but it should have been scored as first degree felony. Harris v. State, 650 So.2d 639 (Fla. 4th DCA 1995); §§ 775.087(l)(b), 777.04(4)(c), and 782.04(2), Fla.Stat. (1993). The difference in points may have affected the outcome. We therefore remand for resentencing upon a properly calculated guidelines seoresheet.

CONVICTION AFFIRMED; SENTENCE REVERSED AND REMANDED FOR RESENTENCING WITH PROPER SCORESHEET.

GUNTHER and STONE, JJ., concur.

Zolache v. State, 657 So. 2d 25, 1995 Fla. App. LEXIS 6105, 1995 WL 334396 (Fla. Ct. App. 1995).

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Opinion

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