ROBERT SAUNDERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Robert Saunders appealed sentences imposed after probation revocation for two counts of burglary. The court vacated the sentences because the trial court improperly applied a sentencing guideline provision that was not yet effective when the sentences were imposed, and failed to provide required written justification for departing from the presumptive guidelines sentence.
The trial court erred by applying Fla.R.Crim.P. 3.701(d)(14) prior to its effective date and thereby exceeded the presumptive guidelines sentence without providing required written reasons for departure. On remand, Saunders must be resentenced under the guidelines in effect when the original sentence was imposed, and if the court departs from those guidelines, it must provide written justification.
[1] A court errs by applying a rule of criminal procedure prior to its effective date.
[2] A departure from presumptive sentencing guidelines requires a written statement delineating the reasons for the departure.
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Join FLexlaw to unlock all legal intelligence“must be accompanied by a written statement delineating the reasons for the departure”
Establishes the requirement for written justification when departing from presumptive sentencing guidelines.
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Join FLexlaw to unlock all legal intelligenceIn 1983, Saunders was placed on concurrent probation for two burglary counts under then-applicable sentencing guidelines. He violated probation condit…
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WENTWORTH, Judge.
Appellant seeks review of sentences imposed, after a violation of probation, for two' counts of burglary. We find that the court erred by applying Fla.R.Crim.P. 3.701(d)(14) (1984) prior to the provision’s effective date, thereby impermissibly exceeding the Fla.R.Crim.P. 3.701 presumptive guidelines sentence. We vacate the sentences appealed and remand the cause for resentencing.
In 1983, pursuant to sentencing guidelines then in effect, appellant was placed on concurrent terms of probation for two counts of burglary. Appellant thereafter violated a condition of his probation and in June 1984 the court revoked the probation and sentenced appellant to a thirty month term of imprisonment for each burglary offense. Such a penalty departs from the presumptive guidelines sentence then applicable, and therefore “must be accompanied by a written statement delineating the reasons for the departure.” See Fla.R.Crim.P. 3.701(d)(ll). While a violation of probation may be an adequate reason for departure from the guidelines, see Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984), in the present case the 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. 2d 691 (Fla. 1st DCA 1984), rehearing denied, September 20, 1984; Carter, supra, fn. 3. On remand, should the court again depart from the recommended guidelines sentence, it must express the reason for such departure in writing.
Accordingly, appellant’s sentences are vacated and the cause remanded for resentencing.
SHIVERS and NIMMONS, JJ., concur. . Rule 3.701(d)(14), effective July 1, 1984, provides that:
Sentences imposed after revocation of probation or community control must be in accord-anee with the guidelines. The sentence imposed after revocation of probation may be included within the original cell (guidelines range) or may be increased to the next higher cell (guidelines range) without requiring a reason for departure.
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Cited By (12 total)
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Olin J. Dewberry v. State, 472 So. 2d 792 (Fla. 1st DCA 1985)…n Judge Mills’ opinion, and would only add that our holding prohibiting retroactive application of amendments 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).…
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Holt v. State, 472 So. 2d 551 (Fla. 1st DCA 1985)…ED and the cause is REMANDED for resentencing. If appellant should select sentencing under the guidelines, he is entitled to be sentenced under the rules in effect at the time of the imposition of this sentence now being reviewed. Saunders v. State, 459 So. 2d 1119 (Fla. 1st DCA 1984). BOOTH, C.J., and BARFIELD, J., concur.…
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Richardson v. State, 472 So. 2d 1278 (Fla. 1st DCA 1985)…he time the offenses were committed. This holding is consistent with prior decisions of this court which have held that the amended guidelines may not be applied retroactively. 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).2 To the ext…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984)
- Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984)
- Randolph v. State, 458 So. 2d 64 (Fla. 1st DCA 1984)