PAUL RAY HANABURY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Paul Ray Hanabury appeals the trial court's denial of his motion to correct sentence, arguing his nine-year sentence (four years prison plus five years probation on consecutive felony counts) exceeded the maximum guideline sentence of four and one-half years. The appellate court agrees and vacates the sentence for resentencing in compliance with the sentencing guidelines.
The court held that when a defendant elects to be sentenced under the guidelines, the total sentence imposed cannot exceed the maximum guideline sentence absent written reasons for departure complying with the guidelines. The total sanction of incarceration and probation must not exceed the maximum guideline range of four and one-half years.
[1] A total sentence imposed under sentencing guidelines cannot exceed the guideline sentence unless the trial court provides clear and convincing written reasons for departi…
[2] A defendant electing to be sentenced under sentencing guidelines in effect at the time of election is entitled to rely on those guidelines as they existed at that time.
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“The total sentence cannot exceed the total guideline sentence unless a written reason is given.”
Establishes the core sentencing guideline requirement that total sentences must comply with guidelines absent documented departure reasons.
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Join FLexlaw to unlock all legal intelligenceOn September 14, 1983, Hanabury entered a no contest plea to five charges: burglary of a dwelling, manufacture of a controlled substance, armed trespa…
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BARKETT, Judge.
The appellant, Paul Ray Hanabury, appeals the trial court’s denial of his motion to correct sentence. Appellant asserts the sentence imposed was in excess of the sentencing guidelines. We agree, reverse, and vacate the sentence.
On September 14, 1983, the appellant entered a no contest plea to burglary of a dwelling, manufacture of a controlled substance, armed trespass of an occupied structure, possession of burglary tools, and obstruction by false information.
On October 19, 1983, the appellant elected to be sentenced under the sentencing guidelines. He scored ninety-five (95) points on the sentencing guideline score-sheet, which called for a recommended sen tence of four years. The trial judge sentenced him to: (1) four years in prison for the burglary charge; (2) a one-year jail sentence for the misdemeanor to run concurrently with the sentence imposed for the burglary; and (3) five years probation on each of the other three felony charges to run consecutively to the prison sentence but concurrently with each other. Appellant thus received a nine-year sentence. The maximum sentence he could have received under the guidelines was four and one-half years absent a finding of clear and convincing reasons by the trial judge for departing from the guidelines.
Appellant filed a motion to correct sentence contending that his prison sentence, combined with the consecutive probation, exceeded the maximum sentence he could receive under the guidelines. The motion to correct sentence was denied.
Florida Rule of Criminal Procedure 3.701(d)(12) states:
Sentencing for separate offenses: A sentence must be imposed for each offense. However, the total sentence cannot exceed the total guideline sentence unless a written reason is given.
At the time of sentencing, on October 19, 1983, the committee note read:
(d)(12) The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall not exceed the guideline sentence, unless the provisions of paragraph 11 are complied with.
If a split sentence is imposed (i.e., a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range, and the total sanction imposed cannot exceed the maximum guideline range.
However, at the present time, committee note (d)(12) reads:
Appellant elected to be sentenced under the guidelines as they were on October 19, 1983. He should be entitled to rely on them as they were when he made the election. Accordingly, we vacate the sentence and remand for the imposition of a sentence in accordance with the sentencing guidelines.
GLICKSTEIN and HURLEY, JJ., concur.
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Whiteman v. State, 465 So. 2d 591 (Fla. 2d DCA 1985)…entences may have been permissible if appropriate written reasons were provided for departure, no such reasons were given by the trial court, and the sentences must be reversed. Walker v. State, 458 So. 2d 396 (Fla. 1st DCA 1984); Hanabury v. State, 459 So. 2d 1113 (Fla. 4th DCA 1984). See also Roux v. State, 455 So. 2d 495 (Fla. 1st DCA 1984). The note to rule 3.701(d)(12) has now been amended to provide that the limit on the total sanction is “the term provided by general law,” not the “maximum guideline ra…
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Bibby v. State, 465 So. 2d 670 (Fla. 4th DCA 1985)…The issue is whether the trial court erred by enhancing the defendant’s sentence, under the sentencing guidelines, without enunciating the reasons for doing so. We find error and reverse on the authority of our recent decision in Hanabury v. State, 459 So. 2d 1113 (Fla. 4th DCA 1984). The trial court imposed a sentence one cell higher than that recommended by the sentencing guidelines after finding that Bibby had violated the conditions of his probation. The court did not state any reason for this action be…
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Stoute v. State, 467 So. 2d 1096 (Fla. 4th DCA 1985)…ted in September, 1983, and he was sentenced in March, 1984. A rule change that is disadvantageous to the criminal defendant does not have retrospective application. . See, e.g., Bibby v. State, 465 So. 2d 670 (Fla. 4th DCA 1985); Hanabury v. State, 459 So. 2d 1113 (Fla. 4th DCA 1984). Here, as in Bibby, the trial court applied the rule change before the change became effective. Accordingly, we reverse and remand with instructions that the trial court, in accordance with the pertinent rule in effect at the t…