4D04-4738-Kennedy v. State

State: Florida

Court: Florida Fourth District Court

Docket No: 4D04-4738

Case Date: 12/07/2005

Preview:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT July Term 2005 RONNIE KENNEDY, Appellant, v. STATE OF FLORIDA, Appellee. No. 4D04-4738 [December 7, 2005] ON REHEARING PER CURIAM. On the State of Florida=s motion, we grant rehearing, withdraw our original opinion issued June 8, 2005, and substitute the following: Appellant, Ronnie Kennedy, challenges the trial court's denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court denied him relief stating that his motion was successive. On rehearing, for the reasons explained herein, we find without merit Kennedy's argument that his conspiracy offense should have been scored as a level 7 offense rather than a level 8 offense. Furthermore, while we agree with the State's position that Kennedy's conspiracy offense should have been scored as a level 9 offense, the State did not cross-appeal to increase Kennedy's sentence level. Therefore, we affirm the sentence. Kennedy pled guilty to trafficking in cocaine in excess of 400 grams and less than 150 kilograms and conspiracy to traffic in cocaine. He was sentenced to 75.7 months in prison. The court identified his trafficking in cocaine offense level as level 9 and his conspiracy offense level as level 8. Kennedy argues that his conspiracy offense was incorrectly scored as a level 8 offense on his sentencing guideline scoresheet because it is an unlisted first degree felony, which should be classified as a level 7 offense. See Preston v. State, 667 So.2d 939 (Fla. 2nd DCA 1996).

Kennedy's reliance on Preston is erroneous for several reasons. First, the offense of conspiracy to traffic in drugs is to be treated the same, for sentencing purposes, as the underlying offense, and the inchoate offense is not an "unlisted offense" for purposes of severity ranking. See

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