Fleming v. State

Appellant appeals his sentence entered after resentencing pursuant to the 1994 sentencing guidelines, alleging that the trial court scored 40 points for severe victim injury without a jury finding, and made an upward departure based in part on three grounds found by the trial court and not the jury in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Additionally, appellant argues that the fourth reason for departure is facially invalid. Because the State concedes error…