Sharp v. State

¶1Kenneth Sharp appeals the trial court’s denial of his motion to dismiss a charge of escape, based on the state’s failure to comply with section 941.45, Florida Statutes (1985).1 Sharp’s contention that section 941.45 applies to him is patently without merit. His return to Florida from Kansas was not predicated upon a detainer lodged against him pursuant to the statute; at the time of his return, there was no “untried indictment, information, or complaint” pending against him in Florida; there was no allegation that Sharp was serving a sentence of imprisonment in Kansas; and there has been no showing that any written request for custody of Sharp was ever presented to Kansas or that such request was ever “approved, recorded, and transmitted” by a Florida court. The trial court correctly denied Sharp’s motion to dismiss, since the requirements of section *53941.45(4)(c), Florida Statutes (1985), do not apply to Sharp. Consequently, we* affirm the judgment of conviction.

¶2On cross-appeal the state properly contends that Sharp’s sentence was erroneously computed under a category (8) offense classification, which category included escape at the time Sharp was sentenced, but not at the time the offense was committed. See Miller v. State, 482 U.S. -, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). Although this error was not raised below, a contemporaneous objection is not required to correct a sentencing guideline miscalculation. State v. Whitfield, 487 So.2d 1045 (Fla.1986). Accordingly, we reverse the sentence and remand for resentencing under a category (9) scoresheet.

¶3AFFIRMED in part; REVERSED in part; and REMANDED.