Fennell v. State

GRIMES, Judge.

Appellant appeals his sentences resulting from convictions for first-degree murder and robbery.

At sentencing, the trial judge included 21 points for victim injury in scoring appellant’s robbery conviction. This court has held that points for victim injury should not be assessed where victim injury is not an element of the crime. Toney v. State, 456 So.2d 559 (Fla. 2d DCA 1984). Victim injury is not an element of the crime of robbery. Parker v. State, 478 So.2d 823 (Fla. 2d DCA 1985). Therefore, the trial court improperly assessed victim injury in its calculation of appellant’s guidelines scoresheet. A declaration of 21 points reduces the guidelines range from 7-9 years to 5½-7 years. Since appellant’s seven-year sentence was at the bottom of the erroneous range, we cannot tell if the court would have entered the same sentence had the proper range been considered.

Accordingly, we affirm appellant’s convictions and the sentence he received for first-degree murder but reverse his robbery sentence and remand for resentenc-ing. This renders moot appellant’s other contention that his written sentence for robbery did not precisely coincide with the sentence which was pronounced in open court.

DANAHY, C.J., and CAMPBELL, JJ., concur.