Mott v. State , 10 Fla. L. Weekly 1338 ( 1985 )

469 So. 2d 946 (1985)

Theodore J. MOTT, Appellant,
v.
STATE of Florida, Appellee.

No. 84-1432.

District Court of Appeal of Florida, Fifth District.

May 30, 1985.

James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and John R. Stump, Asst. Atty. Gen., Daytona Beach, for appellee.

COBB, Chief Judge.

The appellant, Theodore J. Mott, appeals from a sentence of fifteen years' incarceration. The sole issue on appeal is whether he was properly sentenced pursuant to an amendment to the sentencing guidelines.

Mott was charged with escape, the offense occurring in March, 1984. He pled guilty to the charge in June and was sentenced in September to fifteen years' incarceration pursuant to the sentencing guidelines then in effect. This allowed the trial judge to score more than four prior thirddegree felonies based on an amendment effective July 1, 1984, to Florida Rule of Criminal Procedure 3.988(i).^[1]

The question is whether this sentence violates the ex post facto doctrine. See Article I, Sections 9 and 10, United States Constitution. We have held that such retroactive application of an enhanced penalty guideline is proscribed. Joyce v. State, 466 So. 2d 433 (Fla. 5th DCA 1985); Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984); Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984). See also Fletcher v. State, 468 So. 2d 428 (Fla. 4th DCA 1985); Miller v. State, 468 So. 2d 1018 (Fla. 4th DCA 1985). We adhere to that view.

Accordingly, we reverse the sentence, and remand for an appropriate sentence under the guidelines in effect at the time Mott committed the offense, or a departure sentence, if appropriate.

REVERSED and REMANDED.

DAUKSCH and SHARP, JJ., concur.

NOTES

[1] See The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So. 2d 824 (Fla. 1984).