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675 So. 2d 682

Lee v. State

District Court of Appeal of Florida · decided 1996-06-19

Cited by 1 later decisions — most recently December 2018

1 state decisions

Relies on Dautel v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1996-06-19

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PER CURIAM.

¶1The appellant contends, and the state concedes, that his guidelines sentence for armed sexual battery and armed burglary is based upon an error in the scoring of a prior Geor*683gia burglary offense on his guidelines score-sheet. Specifically, the Georgia burglary was scored as a second-degree felony on the theory that the burglarized structure was a dwelling. However, as the record reveals and the state concedes, the Georgia statute does not recognize such a distinction and does not contain a separate element requiring that the burglarized structure be a dwelling. In Dautel v. State, 658 So.2d 88 (Fla. 1995), the supreme court held that only the elements of the out-of-state crime, and not the underlying facts, should be considered in determining the degree of the analogous Florida offense on a guidelines seoresheet. Consequently, the Georgia offense must be scored as a third-degree felony.

¶2Accordingly, we vacate appellant’s sentence and remand the case for resentencing, with instructions to score the Georgia offense as a third-degree felony.

MINER, ALLEN and MICKLE, JJ., concur.
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