Tampa Criminal Lawyer Blog
In each criminal case, the defendant must choose which plea to enter, and in some cases it is prudent for a defendant to enter a guilty plea. Even if a defendant waives his or her right to a trial by conceding guilt, however, he or she is still afforded certain rights with regard to sentencing.
A district court in Florida recently vacated a sentence in a DUI case and remanded the case for resentencing, due to an error made by the trial court in the evidence considered in sentencing the defendant. If you are a Tampa resident charged with a crime, it is important to retain an experienced attorney who can assist you in trying to prevent the state from introducing any prohibited evidence against you.
Charges and Sentencing
Reportedly, the defendant was charged with DUI manslaughter following a fatal crash and entered an open guilty plea. During the defendant’s sentencing, the sentencing scoresheet submitted listed eleven prior offenses, each of which occurred in or before 1999. The total points for the defendant’s prior record, as indicated by the scoresheet, was 9.4. The trial court sentenced the defendant to 132 months’ imprisonment, with a mandatory four year sentence, to be followed by two years of community control and two years of probation. The defendant subsequently appealed. On appeal, the defendant argued that none of the prior offenses on his sentencing scoresheet should have been listed due to the age of the offense.
Florida Rules of Criminal Procedure Regarding Prior Convictions
Under the Florida Rules of Criminal Procedure, a conviction for a crime committed over ten years prior to the date of the primary offense cannot be scored as a prior offense if the defendant has not been convicted of any crime for ten years from the date of his or her most recent release from imprisonment, supervision, or other sanction imposed. Further, the rule provides that any ambiguity in the scoring of the prior record must be resolved in favor of the defendant.
Improper Assessment of Prior Record Points
Allegedly, the parties agreed that the defendant did not commit any of the prior crimes within ten years of the date of the primary crime. It was disputed, however, whether the defendant’s probation for one of the crimes ended less than ten years from the date of the primary crime. The defendant was sentenced to two years’ probation beginning in March 1999. His probation should have ended in March 2001, which was more than ten years prior to the primary crime but did not actually end until May 25, 2011, three weeks before the primary crime. The record showed the probation was extended due to the fact that an affidavit of probation violation was filed in February 2000, but no action was taken until 2011 when the probation violation was withdrawn.
The defendant argued that while Florida law allows for tolling of probation based on a filing of a violation, that law did not become effective until after the defendant’s probation expired in March 2001. The state argued, however, that under the laws in effect at the time of the alleged violation, the defendant’s probation could have been tolled due to absconding. As such, the state argued there was a factual dispute as to whether the defendant’s probation was tolled.
The court found that the defendant’s probation automatically terminated in 2001 and that the record did not show anything occurred that would have tolled the probation. The court declined to allow the state to determine whether any evidence may exist to indicate the probation should have been tolled due to absconding, stating that to do so would give the state a second bite at the apple. As the court found that none of the prior convictions should have been listed on the sentencing score sheet, it reversed the defendant’s sentence and remanded for resentencing.
Retain a Knowledgeable Tampa Criminal Defense Attorney
If you live in Tampa and are facing DUI charges, you should retain a knowledgeable criminal defense attorney to help you develop a defense. William Hanlon of Hanlon Law is an experienced Tampa criminal defense attorney who will work diligently to help you preserve your rights. Contact our offices at 813-228-7095 or via the online form to set up a consultation.
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