NICHOLAS RODRIGUEZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Rodriguez challenged the revocation of his probation and resulting five-year prison sentence. The court affirmed the revocation but reversed on procedural grounds regarding which probation conditions were cited and the improper application of sentencing guidelines to a pre-October 1983 offense.
The court affirmed the revocation of probation based on substantial evidence of violation of the probation modification order, but reversed the portions of the revocation order citing paragraphs one and two. The court also reversed the sentencing under guidelines, holding that for pre-October 1983 offenses, affirmative selection of guidelines is required, and mere silence does not constitute affirmative selection.
[1] Substantial evidence of violating a probation modification order is sufficient to support the revocation of probation.
[2] A trial court may not base a probation revocation order on alleged violations that the court explicitly instructs counsel to disregard.
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Join FLexlaw to unlock all legal intelligence“there was substantial evidence that he violated the probation modification order which stated that he was not 'to go ... within eyesight of the ex-wife's residence'”
Establishes the basis for affirming the probation revocation
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Join FLexlaw to unlock all legal intelligenceRodriguez was on probation subject to a modification order prohibiting him from going within eyesight of his ex-wife's residence. He allegedly violate…
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CAMPBELL, Judge.
Appellant seeks review of the order revoking his probation and his resulting sentence of five years in Florida State Prison.
Appellant first contends that the evidence was insufficient to support revocation of his probation. We find that there was substantial evidence that he violated the probation modification order which stated that he was not “to go ... within eyesight of the ex-wife’s residence _” Therefore, we affirm the revocation of appellant’s probation.
Appellant also urges that the trial court erred in basing the revocation order on violations of condition ten of his probation which were alleged in paragraphs one and two of the warrant. We agree, due to the trial court’s statement to defense counsel, “Forget those first two paragraphs .... ” On remand, that portion of the order citing paragraphs one and two as reasons for the revocation should be deleted and the revocation order amended to indicate that appellant violated only the probation modification order. Finally, appellant argues that the trial court erred in sentencing him under the sentencing guidelines. Fla.R.Cr.P. 3.701. We agree. The underlying offense in this case was committed in September, 1980. The sentencing guidelines may be applied to crimes when the offense occurred prior to October 1, 1983, only where the appellant affirmatively selects to be sentenced under the guidelines. In re Rules of Criminal Procedure, 439 So. 2d 848, 849 (Fla.1983). Here, appellant did not request sentencing under the guidelines, nor, however, did he object to the imposition of a sentence under the guidelines. Mere silence though by the defendant at sentencing, as in this case, cannot meet the requirement of affirmative selection of the guidelines. See Harrington v. State, 455 So. 2d 1317 (Fla. 2d DCA 1984). Accordingly, on remand, the sentence should be corrected to reflect that it is not a guidelines sentence.
In summary, we affirm the probation revocation and remand the case for correction of the revocation order and for resentencing in accordance with the laws in effect at the time of the underlying offense.
SCHEB, A.C.J., and MALONEY, DENNIS P., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984)…ines for sentencing. It is unnecessary for a defendant to file a written statement of selection, nor are “magic words” on the record always necessary. Nevertheless, there must be a clear and unequivocal choice made on the record. Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984). We do not believe that is the case here. While we think that even acquiescence by a defendant can be sufficient, the record before us is, at best, unclear and confusing. Therefore, we believe it will best serve the interest of j…
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Finklea v. State, 470 So. 2d 90 (Fla. 1st DCA 1985)…role. The record does not reveal any evidence that the defendant affirmatively made a choice to be sentenced pursuant to the guidelines. The sentence must therefore be reversed. Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984); Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984). REVERSED and REMANDED for re-sentencing. MILLS and SMITH, JJ., concur.…
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Cannada v. State, 472 So. 2d 1296 (Fla. 2d DCA 1985)…nd unequivocally selected them. The trial judge erred in imposing a guidelines sentence absent Cannada’s affirmative selection. Hart v. State, 464 So. 2d 592 (Fla. 2d DCA 1985); Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984); Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984). Although it is not necessary for us to now decide this issue, we have grave doubts about the validity of any of the reasons used by the trial judge for departing from the guidelines recommended sentence. The first reason given,…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Rules of Criminal Procedure (sentencing Guidelines), 439 So. 2d 848 (Fla. 1983)
- State v. Herlovich, 455 So. 2d 1317 (Fla. 2d DCA 1984)
- Harrington v. State, 455 So. 2d 1317 (Fla. 2d DCA 1984)