WILLIE LEE PERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court affirmed probation revocation but remanded for resentencing under new sentencing guidelines because trial court failed to apply Rule of Criminal Procedure 3.701 despite appellant's timely election.
A trial court must apply new sentencing guidelines under Rule of Criminal Procedure 3.701 when a probation violator timely elects their application, even if the election is made immediately after sentencing is pronounced.
[1] A probationer's election to apply new sentencing guidelines made immediately after sentencing is pronounced is timely when the guidelines are newly effective and procedur…
Previewing 1 of 1 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 appellant's attorney merely failed to move quickly enough at the hearing”
Court's explanation for why the election was not made before sentencing, emphasizing the newness of the procedure
Perry's probation was revoked and he was sentenced to ten years in prison on October 6, 1983, only days after new sentencing guidelines became effecti…
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DOWNEY, Judge.
Appellant seeks review of an order revoking his probation and sentencing him to ten years in prison.
Two points have been presented for our consideration. The first has been mooted by our relinquishment of jurisdiction and the entry and filing of a nunc pro tunc written order designating the grounds for revocation of probation.
In his second point appellant contends that he wished to be sentenced under the new guidelines set forth in Rule of Criminal Procedure 3.701, but before he could make his election the trial court sentenced him outside that format. Immediately thereafter appellant advised the court of his election. The state contends appellant waived the application of the guidelines because his motion was not made until after sentence was pronounced. Considering the point in time when the sentencing took place, we feel the appellant’s contentions are valid. The sentencing took place on October 6, 1983, only a few days after the effective date of the guidelines, and because the procedure regarding exercise of the option was still unfamiliar, the appellant’s attorney merely failed to move quickly enough at the hearing. Additionally, appellant points to Committee Note (c) of Rule of Criminal Procedure 3.701, which seems to require use of the guidelines in sentencing for a probation violation.
Accordingly, we affirm the order revoking appellant’s probation, but remand the cause to the trial court with directions to vacate the sentence appealed from and re-sentence appellant under the new sentencing guidelines.
AFFIRMED AND REMANDED FOR RESENTENCING.
ANSTEAD, C.J., and RODGERS, EDWARD, Associate Judge, concur.
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Mischler v. State, 458 So. 2d 37 (Fla. 4th DCA 1984)…poraneous objection Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984); Rhoden v. State, 448 So. 2d 1013 (Fla.1984); See also Weston v. State, 452 So. 2d 95 (Fla. 1st DCA 1984); Jolly v. State, 454 So. 2d 45 (Fla. 1st DCA 1984); Perry v. State, 457 So. 2d 543 (Fla. 4th DCA 1984). Guidelines do not require defendant to "knowingly and intelligently" select to be sentenced under the guidelines Kiser v. State, 455 So. 2d 1071 (Fla. 1st DCA 1984); Moore v. State, 455 So. 2d 535 (Fla. 1st DCA 1984). Convic…