DAVID DARYL BODINE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a conviction for an offense committed after the instant offense, which led to probation revocation, cannot be included in the offender's 'prior record' for sentencing guideline calculations.
Bodine pleaded guilty to possessing a firearm by a convicted felon, violating his probation for forgery and uttering offenses. He elected sentencing u…
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SHARP, Judge.
Bodine appeals from three sentences of thirty months to run concurrently for forgery 1 and uttering a forgery.2 The sentences were imposed on October 3, 1983, after Bodine pleaded guilty to possession of a firearm by a convicted felon,3 which constituted a violation of his five years probation on the forgery and uttering crimes. Bodine elected to be sentenced under the new sentencing guidelines,4 and he argues that the trial court erred in calculating his sentence by adding to his total score fifteen points for possession of a firearm, -under the category of “prior record.” We agree.
Florida’s' sentencing guidelines define “prior record” as “any past criminal conduct on the part of the offender, resulting in conviction, disposed of prior to the commission of the instant offense.” (Emphasis added). Fla.R.Crim.P. 3.701(d)(5)(a). This subsequently committed crime which formed the basis for Bodine’s probation revocation should not be considered as a part of his prior record because it had not been “disposed of” before he committed the forgery offenses.
Under the guidelines the presumptive sentence in this case (minus the fifteen points improperly added) was the first bracket, any non-state prison sanction. The sentences given fell within the next bracket. We held in Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984), that if Florida Rule of Criminal Procedure 3.701(d)(ll) is complied with, the court may exceed the guideline range where there has been a violation of probation. We therefore vacate the sentences and remand for resentencing.
SENTENCE VACATED AND CAUSE REMANDED FOR RESENTENCING.
COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur. . § 831.01, Fla.Stat. (1981).
. § 831.02, Fla.Stat. (1981).
. § 790.23, Fla.Stat. (1983).
. See Duggar v. State, 446 So. 2d 222 (Fla. 1st DCA 1984).
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Cited By
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Kimble v. State, 458 So. 2d 86 (Fla. 5th DCA 1984)…ed by the rules, a violation of probation may serve as a clear and convincing reason for a departure from a guideline sentence. Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984); Neely v. State, 453 So. 2d 129 (Fla. 5th DCA 1984); Bodine v. State, 452 So. 2d 957 (Fla. 5th DCA 1984); Gordon v. State, 454 So. 2d 657 (Fla. 5th DCA 1984); Maged v. State, No. 83-1705 (Fla. 5th DCA Sept. 20, 1984) [9 FLW 2010]; See also Addison v. State, 452 So. 2d 955 (Fla. 2d DCA 1984), section 921.-005, Florida Statutes (1983)…
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Mack v. State, 458 So. 2d 347 (Fla. 5th DCA 1984)…reasons are given, should be applied and this case should be affirmed. . Maged v. State, 455 So. 2d 1153 (Fla. 5th DCA 1984); Higgs v. State, 455 So. 2d 451 (Fla. 5th DCA 1984); Gordon v. State, 454 So. 2d 657 (Fla. 5th DCA 1984); Bodine v. State, 452 So. 2d 957 (Fla. 5th DCA 1984); Neely v. State, 453 So. 2d 129 (Fla. 5th DCA 1984); Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984). . A sentence that deviates or departs from that recommended by the guidelines does not follow the guidelines and is not a…
Authorities Cited
- Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984)
- Duggar v. State, 446 So. 2d 222 (Fla. 1st DCA 1984)