KIM RANDOLPH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Randolph appeals her 30-month prison sentence imposed under Florida's sentencing guidelines for violation of probation. The appellate court reverses, finding the trial court erroneously applied the guidelines without the defendant's affirmative election and improperly relied on an amendment to the guidelines that was not yet effective at the time of sentencing.
The court reverses on both grounds. First, the guidelines do not apply to pre-October 1, 1983 offenses unless the defendant affirmatively elects to be sentenced under them; no such election was made here. Second, the trial court erred in applying Rule 3.701 d.14 because it was not in effect at the time of sentencing. On remand, the trial court must sentence Randolph according to pre-guidelines procedures unless she affirmatively elects guidelines sentencing.
[1] Sentencing guidelines do not apply to offenses committed prior to October 1, 1983, unless the defendant affirmatively elects to be sentenced thereunder.
[2] A court may not apply a rule of criminal procedure amendment that is not yet effective at the time of sentencing.
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Join FLexlaw to unlock all legal intelligence“even though sentencing occurs on or after October 1,1983, the guidelines do not apply where the offense was committed prior to October 1, 1983, unless the defendant affirmatively elects to be sentenced under the guidelines”
Establishes that pre-October 1, 1983 offenses require affirmative defendant election for guidelines to apply
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Join FLexlaw to unlock all legal intelligenceRandolph was charged with violation of probation, admitted the violation, and her attorney presented mitigation arguments against revocation. During s…
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NIMMONS, Judge.
Randolph appeals her sentence which was imposed under the sentencing guidelines. She complains of the court’s reliance upon the guidelines without her election to be sentenced thereunder. She also asserts that the court erred in relying upon an amendment to the guidelines which provides for “bumping up” the sentence range into the next higher “cell” by reason of Randolph’s probation having been revoked. We reverse on both points.
The defendant was charged with violation of probation. She admitted the violation and her attorney then presented mitigation in an effort to persuade the court not to revoke her probation. When the prosecutor mentioned sentencing guidelines, the defendant’s attorney stated that she did not believe the case would be governed by the guidelines. The court and prosecutor disagreed and, after taking a recess to prepare a guidelines scoresheet, the court proceeded to revoke probation and sentence the defendant to 30 months in the state corrections system. The recommended range under the guidelines score-sheet was “any nonstate prison sanction.” However, the trial court, over counsel’s objection, “bumped up” the sentence range into the next higher cell which provided for “community control or 12-30 months incarceration.” In doing so, the court relied upon Fla.R.Cr.Pr. 3.701 d.14 which provides that sentences imposed after revocation of probation may be increased to the next higher cell without requiring a reason for departure. Rule d.14 was added by amendment on May 8, 1984. The Florida Bar: Amendment to Rules of Criminal Procedure, 451 So. 2d 824 (Fla.1984). And although the defendant was sentenced thereafter on June 12, 1984, the amendment was not effective until July 1, 1984. See Chapter 84-328, Laws of Florida.
With respect to the appellant’s first point that she should not have been sentenced under the guidelines, we note that even though sentencing occurs on or after October 1,1983, the guidelines do not apply where the offense was committed prior to October 1, 1983, unless the defendant affirmatively elects to be sentenced under the guidelines. Section 921.001(4)(a), Florida Statutes (1983); In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So. 2d 848 (Fla.1983); cf. Moore v. State, 455 So. 2d 535 (Fla. 1st DCA 1984); Harrington v. State, 455 So. 2d 1317 (Fla. 2nd DCA 1984) [On Motion for Rehearing]. Although the offense for which appellant was sentenced was committed prior to October 1, 1983, no such affirmative election was made by her. On remand, the trial court should sentence appellant in accordance with the procedures in effect prior to the adoption of sentencing guidelines unless she affirmatively elects to be sentenced under the guidelines.
We also find that the court erred in applying Rule 3.701 d.14 because it was not in effect at the time the defendant was sentenced. See Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984); Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984). Paschal v. Wainwright, 738 F. 2d 1173 (11th Cir.1984), relied upon by the State, is distinguishable.
We realize that a defendant’s violation of probation may be a “clear and convincing reason” for the imposition of a sentence outside the guidelines range. Jackson v. State, supra; Carter v. State, supra. Nevertheless, assuming that she elects on remand to be sentenced under the guidelines, appellant is still entitled to have the trial court properly apply the guidelines including the determination of the particular guidelines cell applicable to the defendant. If, after doing so, the trial judge wishes to impose a sentence outside the guidelines cell, he may do so provided a sufficient basis for the departure is stated by the court in writing as required by Rule 3.701 d.11. Cf. Jackson v. State, supra.
The sentence is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.
SHIVERS and WENTWORTH, JJ., concur.
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Citator
Cited By (16 total)
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Saunders v. State, 459 So. 2d 1119 (Fla. 1st DCA 1984)…he trial court declined to provide the required written statement. The court’s reliance upon Fla.R.Crim.P. 3.701(d)(14)1 was improper, inasmuch as that provision was not yet effective when appellant’s sentence was imposed. Accord, Randolph v. State, 458 So. 2d 64 (Fla. 1st DCA 1984). Furthermore, Rule 3.701(d)(14) does not apply upon remand for resentencing; appellant is entitled to be resentenced under the guidelines in effect at the time the sentence being reviewed was imposed. See Jackson v. State, 454 So…
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Tuthill v. State, 518 So. 2d 1300 (Fla. 3d DCA 1987)…986), as it applies to this case, the remedy is quite obviously not to permit a withdrawal of the [*1305] defendant’s election of guidelines sentencing, but rather simply to apply the law as it stood unaffected by the statute. See Randolph v. State, 458 So. 2d 64 (Fla. 1st DCA 1984); see also Richardson v. State, 472 So. 2d 1278 (Fla. 1st DCA 1985). As established in Albritton v. State, 476 So. 2d 158, 160 (Fla.1985), this rule requires us to review the extent of the deviation from the guidelines on an abuse…
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Olin J. Dewberry v. State, 472 So. 2d 792 (Fla. 1st DCA 1985)…to the guidelines is consistent with prior decisions of this court. Barnes v. State, 461 So. 2d 216 (Fla. 1st DCA 1984); Saunders v. State, 459 So. 2d 1119 (Fla. 1st DCA 1984); Walker v. State, 458 So. 2d 396 (Fla. 1st DCA 1984); Randolph v. State, 458 So. 2d 64 (Fla. 1st DCA 1984); Roux v. State, 455 So. 2d 495 (Fla. 1st DCA 1984); and Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984).…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Rules of Criminal Procedure (sentencing Guidelines), 439 So. 2d 848 (Fla. 1983)
- 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)
- Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984)
- Moore v. State, 455 So. 2d 535 (Fla. 1st DCA 1984)
- Paschal v. Louie L. Wainwright, 738 F.2d 1173 (11th Cir. 1984)
- State v. Herlovich, 455 So. 2d 1317 (Fla. 2d DCA 1984)
- Harrington v. State, 455 So. 2d 1317 (Fla. 2d DCA 1984)