Opinion
No. 97-4515
Opinion filed May 26, 1999
Appeal from the Circuit Court, Broward County, Victor Tobin, J.
Richard L. Rosenbaum of Law Offices of Richard L. Rosenbaum, Fort Lauderdale, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, for appellee.
Joseph Scholz entered a no contest plea to DUI manslaughter and was sentenced to 126.4 months. On appeal, he argues that the court erred by including an additional 120 points for victim injury on his sentencing guidelines scoresheet. Appellant contends that the addition of victim injury points constitutes "double scoring" because death of a victim is an element of DUI manslaughter. We disagree and affirm appellant's sentence. See Wendt v. State, 711 So.2d 1166, 23 Fla. L. Weekly D896 (Fla. 2d DCA 1998) and Martinez v. State, 692 So.2d 199, (Fla. 3d DCA), review denied, 697 So.2d 1217 (Fla. 1997).
Appellant further argues that the trial court erred in refusing to order a downward departure sentence. Contrary to appellant's assertions, the record reflects that the trial judge was aware of his discretion to deviate from the guidelines but declined to do so after fully evaluating evidence submitted by appellant of mitigating factors under section 921.0016, Florida Statutes. We cannot say that the trial court abused its discretion in declining to depart from the recommended sentencing range in this case.
AFFIRMED.
WARNER, STEVENSON and TAYLOR, JJ., concur.