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Appellant Argues Sentencing Guidelines were Inaccurate


In this case, a New York Criminal Lawyer said the Appellant sought review of the sentences imposed based upon inaccurate sentencing guidelines scoresheet, and a written probation order that included a condition which was not pronounced orally at the sentencing hearing.

The court reversed the sentence imposed and remanded the case for resentencing.

The predicate offenses, kidnapping and armed robbery with a weapon, were committed June 8, 1990. The guidelines scoresheet used at sentencing shows a total of 316 points, for a recommended sentencing range of twelve to seventeen years, and a permitted sentencing range of nine to twenty-two years. The trial court imposed a sentence of twenty years on the kidnapping conviction, and a probationary term of twenty years on the armed robbery with a weapon conviction. The probation was to be served consecutively to the kidnapping sentence.

Appellant argued that the guidelines scoresheet relied upon by the trial court was inaccurate with regard to points assessed for legal constraint, scoring a New York petit larceny conviction as a felony, and assessing points for six rather than five prior misdemeanors, and asserts error with respect to the written condition of probation. The state agrees the written probation order must be conformed to the oral pronouncement, but rejects the challenges to the accuracy of the scoresheet.

With regard to the assessment of legal constraint points based upon legal status at the time of the offense, the Category 9 scoresheet applicable to this case designates assessment of twenty-four points if the offender was under legal constraint when the convicted offenses were committed. The scoresheet used at sentencing scored forty-eight points for legal constraint, presumably based upon two New York “failure to appear” capiases dated 1985 and 1989.

Appellant challenged these legal constraint points on the following grounds: that the predicate charge underlying the 1989 failure to appear capias had been withdrawn; and the existence of the legal status was based upon hearsay obtained from the presentence investigation report, which had not been verified.

Jurisprudence dictates that the legal status points may be scored if, at some time prior to the convicted offense, the offender had failed to appear for a criminal judicial proceeding. A Nassau County Criminal Lawyer said that if an accused challenges the accuracy of his prior record, both on hearsay grounds and as to the correctness of the information, the state is required to provide further corroboration. However, where the objection to prior convictions on a rap sheet is predicated solely on hearsay, with no dispute as to their truth, the state need not produce corroborating evidence. Still, “legal status points are to be assessed only once whether there are one or more offenses at conviction.”

Appellant argued that the 1989 failure to appear should be deleted, because the victim withdrew the predicate charges. Even if legal constraint points ought not be assessed when the underlying charge has been withdrawn, appellant has not disputed the 1985 legal constraint. The failure to challenge the truth of the legal constraints obviated the state’s obligation to produce corroborating evidence beyond that shown on the prior record.

Nevertheless, the court held that it was error to apply a multiplier to the scoresheet legal constraint points. A New York Sex Crimes Lawyer said the application of a multiplier to assess legal constraint points for each convicted offense is improper. The court also ruled that the prohibition against multiplying legal status points by the number of offenses at conviction is also applicable to the number of legal constraints reflected in the prior record. Upon remand, no more than twenty-four legal status points may be scored.

Appellant’s second scoresheet challenge was directed to scoring a New York petit larceny conviction as a third-degree felony. Jurisprudence dictates that out-of-state convictions are to be “assigned the score for the analogous or parallel Florida statute.” Fla.R.Crim.P. 3.701 d.5(a)(2). The state does not dispute that under New York law, petit larceny is a misdemeanor. Since there is a notable absence in the record of the three prior petit theft convictions required to raise a petit theft conviction to a third-degree felony, the court ruled that it was improper to score the New York petit larceny conviction as a felony. Upon remand, this conviction must be scored as a misdemeanor.

With respect to the argument regarding the written probation condition that was not pronounced orally at sentencing, the state agrees with Appellant that the written probation order requiring payment of $1.00 per month to First Step, Inc. of Bay County must be conformed to the oral pronouncement at the sentencing hearing.

The court reversed the sentence imposed and remanded the case for resentencing pursuant to a corrected scoresheet, and for conformance of the written probation order with the oral pronouncement.

Stephen Bilkis and Associates with its New York Petit Larceny Lawyers are knowledgeable to handle and argue your case. It has convenient offices within New York Metropolitan area, including Corona, New York.

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