RUSSELL SCOTT GORDON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A violation of probation can serve as a legitimate reason to exceed the presumptive sentence under the sentencing guidelines.
The defendant's probation was revoked, and he was sentenced to imprisonment for second degree grand theft. This sentence exceeded the presumptive guid…
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SHARP, Judge.
On October 27, 1983, the trial court revoked Gordon’s probation and pursuant to the new sentencing guidelines sentenced him to three years imprisonment for second degree grand theft. § 812.014(2)(b), Fla. Stat. (1983). This sentence exceeded the presumptive guideline range by two cells. We affirm.
The trial court’s reason for departing from the guidelines was that under the guidelines Gordon would receive no additional punishment for having violated the terms of his probation. In this case, although the recommended range was any non-state prison term,1 the trial court could not give Gordon any jail time, because he had already served or received credit for 365 days in the county jail. The court expressly wrote on its sentencing score sheet: “The defendant had already received the maximum sentences provided under the guidelines before he violated his probation.
As we said in Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984), a violation of probation may serve as a legitimate reason to exceed the presumptive sentence, provided rule 3.701(d)(ll) is followed. We think the court gave “clear and convincing” reasons under rules 3.701(b) and 3.701(d)(ll) in this case. Accordingly, the sentence is
AFFIRMED.
COBB, C.J., and FRANK D. UP-CHURCH, Jr., J., concur. . Fla.R.Crim.P. 3.988(f). The committee note to Florida Rule of Criminal Procedure 3.701(d)(8) states that the category of non-state prison sanction “allows the court the flexibility to impose any lawful term of probation with or without a period of incarceration as a condition of probation, a county jail term alone or any none in-carcerative disposition." The committee notes have been adopted as part of the rules by the supreme court. The Florida Bar: Amendment to Rules of Criminal Procedure, 451 So. 2d 824 (Fla.1984).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)…g reason standard. . Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984); Neely v. State, 453 So. 2d 129 (Fla. 5th DCA 1984); Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984); Bogan v. State, 454 So. 2d 686 (Fla. 1st DCA 1984); Gordon v. State, 454 So. 2d 657 (Fla. 5th DCA 1984); Davis v. State, 455 So. 2d 602 (Fla. 5th DCA 1984); Maged v. State, 455 So. 2d 1153 (Fla. 5th DCA 1984); Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984); Addison v. State, 452 So. 2d 955 (Fla. 2d DCA 1984); Gordon v. State, 45…1 / 3
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Townsend v. State, 458 So. 2d 856 (Fla. 2d DCA 1984)…or lack of amenability to probation justified departure); Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984) (violation of probation may serve a legitimate reason for exceeding guideline sentence provided reason given in writing); Gordon v. State, 454 So. 2d 657 (Fla. 5th DCA 1984) (violation of probation may serve as legitimate reason to exceed presumptive sentence where defendant had already received the maximum sentences provided under the guidelines before he violated probation); Jackson v. State, 454 S…
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Whitlock v. State, 458 So. 2d 888 (Fla. 5th DCA 1984)…n and the Court has exhausted the available county jail time. We think the trial court was justified in departing upwards from the presumptive guideline sentence because Whitlock repeatedly violated the conditions of his probation. Gordon v. State, 454 So. 2d 657 (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). Once there exists clear and convincing reasons to depart from the guidelines, we do not think the appellate courts have ju…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- THE Fla. BAR: Amendment to Rules of Crim. Procedure (3.701, 451 So. 2d 824 (Fla. 1984)
- Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984)