
    James Carl BROWN, Appellant, v. STATE of Florida, Appellee.
    No. BE-124.
    District Court of Appeal of Florida, First District.
    April 23, 1986.
    Rehearing Denied May 14, 1986.
    
      Neal L. Betancourt, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen., Tallahassee, for appellee.
   BOOTH, Chief Judge.

This cause is before us on appeal from a judgment and guideline sentence entered after appellant was convicted by a jury of burglary of a dwelling with the intent to commit sexual battery therein while armed with a dangerous weapon (Count I), kidnapping with the intent to commit sexual battery while in possession of a weapon (Count II), and sexual battery of a person over the age of 11 years while using or threatening to use a deadly weapon (Count III). Appellant was adjudicated guilty of all three counts and sentenced to three concurrent life sentences.

Appellant has raised five issues on appeal, only one of which merits discussion. Appellant challenges the trial court’s application of Rule 3.988, Florida Rules of Criminal Procedure, Guideline Scoresheet No. 2, amended effective July 1, 1984. Based on State v. Jackson, 478 So.2d 1054 (Fla.1985), we affirm.

Appellant was charged in a three-count amended information with the December 4, 1983, offenses. On November 2, 1984, appellant was convicted by a jury on all three counts. Judgment and sentence were delayed pending a determination of the proper authority for sentencing. The State argued the proper authority was the aforecit-ed rule, as amended effective July 1, 1984, which would result in recommended sentences of life imprisonment. Appellant argued the appropriate authority was the afo-recited rule as it existed at the time of the offenses, December 4, 1983, which would result in recommended sentences of from 17 to 22 years of imprisonment.

Appellant, relying on Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), asserts that application of the amended guidelines in this case violates the ex post facto clause of the United States Constitution.

However, in Jackson, the Supreme Court, addressing a violation of probation, concluded:

[T]he presumptive sentence established by the guidelines does not change the statutory limits of the sentence imposed for a particular offense. We conclude that a modification in the sentencing guidelines procedure, which changes how a probation violation should be counted in determining a presumptive sentence, is merely a procedural change, not requiring the application of the ex post facto doctrine....
We reject Jackson’s contention that Weaver v. Graham, 450 U.S. 24 [101 S.Ct. 960, 67 L.Ed.2d 17] (1981), should control in these circumstances.

Jackson involved a remand on a resentenc-ing due to probation violation. However, in Wilkerson v. State, 480 So.2d 213 (Fla. 1st DCA 1985), this court had before it an original sentencing and declined to draw a distinction on that ground, holding that the underlying legal principle applies equally to the circumstances in all three cases. Specifically, the presumptive sentence established by the amended guidelines does not change the statutory limit of the sentence imposed. Thus, under the circumstances in this case, the modification in the sentencing guidelines is a procedural change not requiring the application of the ex post facto doctrine.

Confronting the same issue as in Wilkerson, we again certify the following question to the Supreme Court of Florida as one of great public importance:

WHETHER ALL SENTENCING GUIDELINES AMENDMENTS ARE TO BE CONSIDERED PROCEDURAL IN NATURE SO THAT THE GUIDELINES AS MOST RECENTLY AMENDED SHALL BE APPLIED AT THE TIME OF SENTENCING WITHOUT REGARD TO THE EX POST FACTO DOCTRINE.

Accordingly, we affirm.

NIMMONS, J., concurs.

ZEHMER, J., concurs in part and dissents in part with written opinion.

ZEHMER, Judge,

concurring in part and dissenting in part.

I concur in the majority decision only to certify the issue discussed as posing a question of great public importance and to affirm the issues not discussed in the opinion. I dissent to extending the holding in State v. Jackson, 478 So.2d 1054 (Fla.1985), to permit, under the facts of this case, retroactive application of the 1984 amendment to rule 3.988, Florida Rules of Criminal Procedure (adopted and implemented in accordance with section 921.001, Florida Statutes (1984), by chapter 84-328, section 1, Laws of Florida). Jackson is difficult, if not impossible, to reconcile with the principles espoused by the United States Supreme Court in Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981), regarding the application of the ex post facto doctrine to changes in the law that increase the degree of punishment for crimes committed prior thereto; and, for the reasons discussed in Justice Ehrlich’s dissent in Jackson, I would not extend that decision beyond the precise facts and issue there involved. See Judge Barfield’s concurring opinion in Wilkerson v. State, 480 So.2d 213 (Fla. 1st DCA 1985).

I respectfully submit that our Supreme Court should take jurisdiction of the question certified in this case and in Wilkerson, and address anew the ex post facto doctrine in regard to changes in the sentencing guidelines law. Even though changes in that law may be properly characterized as entirely procedural, such changes nevertheless can and often do disadvantage the substantial rights of an accused to be sentenced to a term of imprisonment substantially less than the maximum statutory limit for that offense. An accused must be sentenced within the guidelines presumptive range unless the record contains substantive proof beyond a reasonable doubt of the existence of clear and convincing reasons for deviation therefrom. State v. Mischler, 488 So.2d 523 (Fla.1986). Unless the accused’s right to be sentenced within the guidelines presumptive sentence range is so substantial that imposition of sentence beyond the presumptive range can be said to disadvantage the accused within the meaning of Weaver v. Graham, I am at a complete loss to comprehend why the Florida district courts of appeal and the Supreme Court are required to expend so much judicial time and energy reviewing thousands of criminal cases involving deviating sentences to decide whether they exceed the bounds of judicial discretion and otherwise fail to conform to the requirements of the guidelines law. Unless the rights secured by the guidelines law are substantial enough to fall within Weaver v. Graham, it would seem appropriate to treat the failure of trial courts to comply with the law as harmless error in most cases. Yet, just the opposite result is the usual case under appellate decisions construing the law.

Protection against ex post facto laws is a constitutional right contained in both the federal and state constitutions. Most assuredly, the level of legal and judicial concern for uniformity in sentencing mandated by the guidelines law makes the line between a mere procedural right and a substantial substantive right so murkey and imprecise that further analysis in greater depth than that contained in the Jackson opinion seems not only appropriate but desperately needed before retroactively applying a guidelines amendment that changes, after commission of the offense, the presumptive sentence to life imprisonment without right of parole rather than seventeen to twenty-two years’ imprisonment.  