Cahill v. State

467 So. 2d 366 (1985)

Robert William CAHILL, Appellant,
v.
STATE of Florida, Appellee.

No. 85-1554.

District Court of Appeal of Florida, Second District.

March 13, 1985. Rehearing Denied April 15, 1985.

H. Michael Evans of Mosley & Evans, P.A., Clearwater, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.

SCHOONOVER, Judge.

The appellant, Robert William Cahill, appeals from the judgment and sentence entered against him pursuant to a jury verdict finding him guilty of kidnapping in violation of section 787.01 1(a)(3), Florida Statutes (1983). Appellant has raised two arguments on appeal, but we find merit only in his contention that the trial court erred in sentencing him under the sentencing guidelines, Florida Rules of Criminal Procedure 3.701.

The offense in this case was committed in September, 1983. At sentencing on June 29, 1984, the parties discussed the guidelines scoresheet. The court stated it was going to depart from the guidelines, set forth reasons for its departure, and then sentenced the appellant to life imprisonment. This appeal timely followed.

Where an offense occurs prior to October 1, 1983, the sentencing guidelines may only be applied if the defendant affirmatively selects to be sentenced under them. In Re Rules of Criminal Procedure, 439 So. 2d 848 (Fla. 1983). Although the appellant in this case did not object to the imposition of a sentence under the guidelines, he did not affirmatively select to be sentenced under them. Neither appellant's silence, nor the discussion of a scoresheet presented pursuant to the rule, can constitute a clear and unequivocal selection to be sentenced under the guidelines. Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984).

Since the record does not reflect a clear and unequivocal selection by the appellant, we reverse and remand for resentencing. At resentencing the appellant may affirmatively select to be sentenced under the guidelines. If he does not, the court must resentence him according to the law in effect prior to the adoption of the guidelines. We affirm the judgment in all other respects.

Reversed and remanded for resentencing.

GRIMES, A.C.J., and DANAHY, J., concur.