Rubier v. State

¶1We affirm appellant’s conviction of second-degree murder (of Caceres), attempted third-degree murder (of Perez), shooting into an occupied vehicle and displaying a firearm while committing a felony.

¶2In computing appellant’s sentence for attempted third-degree murder, the trial judge included 21 points for the injury to Perez, which raised appellant’s guidelines sentence to the 17-22 years range. The guidelines in effect in January, 1986, the date of the offenses and thus applicable,1 provided: “Victim injury shall be scored if it is an element of any offenses at conviction.” (e.s.)2

¶3The state concedes that victim injury, not being an essential element of the attempted third-degree murder of Perez, cannot therefore be counted under the applicable guidelines. Exclusion of the 21 points for such injury thus reduces the guidelines sentencing range to the 12-17 years cell.

¶4Accordingly, we affirm the convictions herein but vacate the sentences imposed and remand for appropriate sentencing within the 12-17 years range.