BELINDA DUGGAR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Belinda Duggar challenges her sentencing following probation revocation, arguing she was entitled to be sentenced under Florida's new sentencing guidelines. The court agrees and reverses, holding that a defendant whose probation is revoked after the guidelines' effective date must be sentenced under those guidelines if elected.
A defendant placed on probation prior to October 1, 1983, whose probation is revoked after that date, must be sentenced in accordance with Rule 3.701 if the defendant elects to do so. The sentencing occurs at probation revocation, not at the initial placement on probation.
[1] A defendant placed on probation prior to October 1, 1983, whose probation is revoked after that date, must be sentenced under the new sentencing guidelines if the defenda…
[2] When a defendant is placed on probation, sentence is stayed and withheld until probation is revoked.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The sentencing guidelines adopted herein will be effective for all applicable offenses committed after 12:01 a.m., October 1,1983 and, if affirmatively selected by the defendant, to sentences imposed after that date for applicable crimes occurring prior thereto.”
Establishes that the guidelines apply to sentences imposed after October 1, 1983, even for crimes committed before that date, if the defendant elects
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Join FLexlaw to unlock all legal intelligenceOn June 21, 1982, Duggar pleaded nolo contendere to attempted aggravated battery. The trial court withheld sentence and placed her on probation for fi…
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MILLS, Judge.
Duggar contends that she was entitled to be sentenced under Florida’s new sentencing guidelines, Rule 3.701, Florida Rules of Criminal Procedure, after the trial court revoked her probation. We agree and reverse.
On 21 June 1982, Duggar pled nolo con-tendere to a charge of attempted aggravated battery. The trial court withheld sentence and placed her on probation for a period of five years.
An affidavit was filed on 17 October 1983 alleging that Duggar had violated the terms of her probation. A hearing was held on 2 November 1983 following which the trial court revoked her probation. Duggar’s attorney requested that she be sentenced pursuant to Rule 3.701, Florida Rules of Criminal Procedure. The trial court denied the request and sentenced her to two years imprisonment.
In its opinion adopting Rule 3.701, In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So. 2d 848, 849 (Fla.1983), the Florida Supreme Court stated that:
The sentencing guidelines adopted herein will be effective for all applicable offenses committed after 12:01 a.m., October 1,1983 and, if affirmatively selected by the defendant, to sentences imposed after that date for applicable crimes occurring prior thereto. (Emphasis added)
In urging that Duggar was not entitled to be sentenced under the rule, the State asserts that she was sentenced when she was initially placed on probation and that she therefore is not entitled to the election provided by the rule. This assertion is without merit. When a defendant is placed on probation, the trial court must stay and withhold imposition of sentence. Section 948.01(3), Florida Statutes (1983). In this case, therefore, Duggar was not sentenced until probation was revoked on 2 November 1983, and she was thus entitled to elect sentencing under the guidelines.
Moreover, Committee Note (c) to Rule 3.701 states unequivocally:
If a defendant is to be sentenced for a probation violation, and the sentencing judge elects to revoke probation, the new sentence must be in accordance with the guidelines.
Although the Committee Notes to the Florida Rules of Criminal Procedure have not been adopted by the Florida Supreme Court, we find them highly persuasive in arriving at the proper construction to be placed on the rules. Therefore, we hold that a defendant placed on probation prior to 1 October 1983 whose probation is revoked after that date must be sentenced in accordance with Rule 3.701 if the defendant so elects.
The sentence is vacated and the cause remanded to the trial court for resentencing under the guidelines.
WENTWORTH and BARFIELD, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (24 total)
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State v. Jackson, 478 So. 2d 1054 (Fla. 1985)…First, as the state concedes, it was firmly established subsequent to Jackson’s sentencing that he was entitled to be sentenced under the sentencing guidelines statutes and rules. State v. Boyett, 467 So. 2d 997 (Fla.1985). See also Duggar v. State, 446 So. 2d 222 (Fla. 1st DCA 1984). These statutes and rules clearly mandate that a trial judge state in writing reasons for any departure from the guidelines. Section 921.001(6), Florida Statutes (1983), provides: The sentencing guidelines shall provide that any…
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Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984)…traint” at the time the offense for which appellant was being sentenced was committed. Fla.R.Crim.P. 3.988(d)(IV). But, Carter was not under any legal constraint at the time she committed the offense for which she was sentenced. See Duggar v. State, 446 So. 2d 222 (Fla. 1st DCA 1984). However, we think that a violation of probation may serve as a legitimate reason to exceed the presumptive sentence established in the guidelines in the discretion of the trial judge, provided the basis is stated in writing. Fl…1 / 2
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Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984)…nal Procedure, effective October 1, 1983, adopted by opinion In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So. 2d 848 (Fla.1983). We agree, and remand for resentencing. This case is factually indistinguishable from Duggar v. State, 446 So. 2d 222 (Fla. [*692] 1st DCA 1984).1 In both cases, the defendants were placed on probation prior to the effective date of the guidelines, probation was revoked subsequent to the effective date of the guidelines, and on sentencing both defendants requested…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Rules of Criminal Procedure (sentencing Guidelines), 439 So. 2d 848 (Fla. 1983)