ATWATER v. STATE (1999)

District Court of Appeal of Florida,Fifth District.

Linda K. ATWATER & Samara Melissa Burgess, Appellants, v. STATE of Florida, Appellee.

Nos. 98-193, 98-194.

Decided: October 01, 1999

James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee.

We affirm the convictions in this consolidated appeal based on Howard v. State, 24 Fla. L. Weekly D1419, 738 So.2d 372 (Fla. 5th DCA 1999).

We reverse the sentences for conspiracy to commit racketeering, however, because the court incorrectly ranked the convictions as level 8 offenses. Section 777.04(4)(a), Florida Statutes, provides that criminal conspiracy is ranked one level below the ranking of the substantive offense, unless otherwise provided in section 921.0012, Florida Statutes. Racketeering is ranked as a level 8 offense, and conspiracy to commit racketeering is not specifically listed. See § 921.0012(3), Fla. Stat. Accordingly, the appellants' convictions for conspiracy should have been ranked as level 7 offenses, and the cases are remanded for re-sentencing as level 7 offenses.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

THOMPSON, J.

ANTOON, C.J., and GRIFFIN, J., concur.

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