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475 So. 2d 1000

475 So.2d 1000

10 Fla.L.Weekly 2167

Docket No. 84-1814.

Benedict v. State

Scott Alan BENEDICT, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided September 19, 1985.

District Court of Appeal of Florida · decided 1985-09-19

Key passage — most relied on by later courts

“(d)(7) This provision implements the intention of the commission that points for victim injury be added for each victim injured during a criminal transaction or episode. The injury need not be an element of the crime for which the defendant is convicted, but is limited to physical trauma. However, if the victim injury is the result of a crime for which the defendant has been acquitted, it shall not be scored.”

quoted by 1 later decision, including 692 So. 2d 199 - Martinez v. State

“Victim injury shall be scored if it is an element of any offenses at conviction.”

quoted by 1 later decision, including 498 So. 2d 1294 - Vega v. State

Relies on 476 So. 2d 158 - Albritton v. State · 469 So. 2d 128 - Weems v. State · 455 So. 2d 586 - Green v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1985-09-19

How this case has been cited

Cited by 6 later decisions — most recently March 2004

6 state decisions

30198519902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.

¶2*1001 Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Daytona Beach, for appellee.

¶3UPCHURCH, Judge.

¶4Benedict appeals from a guidelines sentence for the offense of leaving the scene of an accident with injuries, contending that the trial court erred in assessing points for victim injury.

¶5Florida Rule of Criminal Procedure 3.701(d)(7) provides that victim injury shall be scored if it is an element of any offenses at conviction. The committee note explains that:

This provision implements the intention of the commission that points for victim injuries be added only when the defendant is convicted of an offense (scored as either primary or additional offense) which includes physical impact or contact. Victim injury is to be scored for each victim for whom the defendant is convicted of injuring and is limited to physical trauma.

¶6In the present case, Benedict was convicted of violating sections 316.027 and 316.062, Florida Statutes, which require the driver of any vehicle involved in an accident resulting in injury or death to stop and render aid and to furnish certain information upon request. In Motyka v. State, 457 So.2d 1114 (Fla. 1st DCA 1984), a case virtually identical to the present case, the court concluded that victim injury is not an element of leaving the scene of an accident (section 316.027) in the sense that one must injure or kill someone to be guilty of the offense.[1] Likewise, we conclude that victim injury is not an element of section 316.062. Accordingly, points for victim injury should not have been scored. See Motyka. See also Hendry v. State, 460 So.2d 589 (Fla. 2d DCA 1984) (victim injury points should not have been included in scoresheet since victim injury is not an element of the offenses of robbery, armed robbery or grand theft for which defendant was convicted.) Since points were erroneously scored for victim injury, we reverse and remand for resentencing.

¶7REVERSED and REMANDED.

¶8COBB, C.J., concurs.

¶9COWART, J., concurs specially with opinion.

¶10COWART, Judge, concurring specially:

¶11This special concurrence is to note, as did the court in Hendry v. State, 460 So.2d 589 (Fla. 2d DCA 1984), that because some aggravating sentencing factor is not, or cannot be, considered in a guidelines scoresheet calculation constitutes the very reason that factor may be properly considered by the trial court as a possible "clear and convincing" reason for departure from the recommended guideline sentence. See Albritton v. State, 458 So.2d 320 (Fla. 5th DCA 1984), quashed on other grounds, 476 So.2d 158 (Fla. 1985); Burke v. State, 456 So.2d 1245 (Fla. 5th DCA 1984); Green v. State, 455 So.2d 586 (Fla. 2d DCA 1984); Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984), approved, 469 So.2d 128 (Fla. 1985).

NOTES

¶12[1] For example, the driver who caused the accident could be the injured person and if the non-negligent driver left the scene, he could be charged.

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