CALVIN WALLACE KIMBLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Calvin Wallace Kimble appealed his probation violation conviction and sentence, arguing that the sentencing guidelines should not have applied because his original burglary offense predated the guidelines' effective date. The court held that because Kimble elected to be sentenced under the guidelines, they were applicable, but his sentence must be reconsidered under proper guideline procedures.
The sentencing guidelines apply when a defendant elects to be sentenced under them, regardless of when the original offense was committed. The trial court must either impose the presumptive guideline sentence or impose a departure sentence in accordance with the guidelines, which requires clear and convincing reasons stated in writing.
[1] A defendant who elects to be sentenced under the sentencing guidelines is subject to those guidelines, even if the underlying offense occurred before the guidelines' effe…
[2] A violation of probation occurring before the effective date of sentencing guidelines may be sentenced under those guidelines if the defendant elects to be sentenced ther…
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“Because of appellant's election the guidelines were applicable.”
Establishes that a defendant's election to be sentenced under the guidelines makes them applicable even if the original offense predated the guidelines' effective date.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn 1980, Kimble pled guilty to burglary and was placed on probation. On October 18, 1983, he was found guilty of violating his probation and was sente…
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PER CURIAM.
In 1980 appellant pled guilty to burglary and was placed on probation. On October 18, 1983, appellant was found guilty of violating his probation. Although his original offense was committed before the effective date (October 1, 1983) of the sentencing guidelines,1 appellant was sentenced after that date, and elected to be sentenced under the guidelines. The trial court ruled that the sentencing guidelines did not apply to this case because the violation of probation occurred prior to the date sentencing guidelines were effective and did not impose the recommended guideline sentence and did not state in writing reasons for imposing a departure sentence. Because of appellant’s election the guidelines were applicable. See Carroll v. State, 454 So. 2d 791 (Fla. 5th DCA 1984); Rutlin v. State, 455 So. 2d 1347 (Fla. 5th DCA 1984); Mack v. State, 458 So. 2d 347 (Fla. 5th DCA 1984).
We have recently held that as to sentence imposed before July 1, 1984,2 in the exercise of judicial sentencing discretion and when articulated in writing as required 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), and the special concurring opinion in Manning v. State, 452 So. 2d 136 (Fla. 1st DCA 1984).
We affirm the appealed convictions but vacate the sentence in circuit court case number 79-2719 and remand for sentencing to the presumptive or recommended guideline sentence or to a departure sentence imposed in accordance with the sentencing guidelines.
CONVICTIONS AFFIRMED, SENTENCE VACATED AND REMANDED.
SHARP and COWART, JJ., concur. DAUKSCH, J., concurs in conclusion only.
. See In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So. 2d 848 (Fla.1983).
. July 1, 1984, is the effective date the original guidelines were amended to cause a violation of probation to become a factor involved in the computation of a presumptive or recommended sentence under the guidelines. See Ch. 84-328, Laws of Florida, and The Florida Bar: Amendment to the Rules of Criminal Procedure (3.701; 3.988 — (Sentencing Guidelines), 451 So. 2d 824 (Fla.1984).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Heriberto Rodriguez v. State, 464 So. 2d 638 (Fla. 3d DCA 1985)…missible where, as here, the sentences are imposed following an order of probation revocation. We must reject this claim based on a well-settled line of authority in this state. Whitlock v. State, 458 So. 2d 888 (Fla. 5th DCA 1984); Kimble v. State, 458 So. 2d 86 (Fla. 5th DCA 1984); Neely v. State, 453 So. 2d 129 (Fla. 5th DCA 1984); Addison v. State, 452 So. 2d 955 (Fla. 2d DCA 1984); Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984). He further contends that, even if the trial court was permitted to d…
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Browning v. State, 465 So. 2d 1357 (Fla. 5th DCA 1985)…judicial sentencing discretion and when articulated in writing as required by Florida Rule of Criminal Procedure 3.701, a violation of probation may serve as a clear and convincing reason for a departure from the guideline sentence. Kimble v. State, 458 So. 2d 86 (Fla. 5th DCA 1984); Gordon v. State, 454 So. 2d 657 (Fla. 5th DCA 1984); Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984). Here, Browning violated his probation, but the violation was not given as a reason for departure on either the scoresheet…
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Chatman v. State, 477 So. 2d 564 (Fla. 1985)…OVERTON, Justice. The decision of the Fifth District Court of Appeal reported as Chatman v. State, 458 So. 2d 86 (Fla. 5th DCA 1984), is approved on the authority of Fike v. State, 474 So. 2d 1192 (Fla.1985). See also Ramsey v. State, 474 So. 2d 1193 (Fla.1985). It is so ordered. BOYD, C.J., and ADKINS, McDONALD, EHLRICH and SHAW, JJ., concur.…
Authorities Cited (12 total)
- 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)
- Glynn Addison, Jr. v. State, 452 So. 2d 955 (Fla. 2d DCA 1984)
- Manning v. State, 452 So. 2d 136 (Fla. 1st DCA 1984)
- Gordon v. State, 454 So. 2d 657 (Fla. 5th DCA 1984)
- Jackson Leroy Neely v. State, 453 So. 2d 129 (Fla. 5th DCA 1984)
- Rutlin v. State, 455 So. 2d 1347 (Fla. 5th DCA 1984)
- Bodine v. State, 452 So. 2d 957 (Fla. 5th DCA 1984)
- Carroll v. State, 454 So. 2d 791 (Fla. 5th DCA 1984)