JEFFREY SCOTT GAGE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jeffrey Scott Gage appealed his probation revocation sentences, challenging both the lack of a knowing and intelligent waiver of parole eligibility and the trial court's failure to use a sentencing scoresheet. The court affirmed Gage's first contention was meritless but reversed on the second contention, holding that the trial court must have and review a scoresheet before imposing sentences under the sentencing guidelines.
The court rejected the first contention based on precedent requiring only affirmative selection and certified the question to the Supreme Court as one of great public importance. The court reversed on the second contention, holding that the sentencing judge must have and approve a scoresheet before imposing sentences under the guidelines, as the judge cannot determine the recommended sentencing range without it.
[1] A defendant who committed a crime before October 1, 1983, and affirmatively selects sentencing pursuant to the sentencing guidelines, may be required to knowingly and int…
[2] A trial court errs by failing to order the State to prepare a sentencing scoresheet.
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Join FLexlaw to unlock all legal intelligence“The sentencing judge shall approve all score-sheets”
Rule 3.701(d)(1) requirement that was violated by the trial court
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Join FLexlaw to unlock all legal intelligenceGage's probation was revoked and he received prison sentences. At sentencing, Gage's counsel indicated she had prepared a sentencing scoresheet but be…
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MILLS, Judge.
Gage appeals from prison sentences imposed on him following revocation of his probation. He contends the sentences should be vacated because the record does not show that in selecting sentencing pursuant to the sentencing guidelines he knowingly and intelligently waived his right to parole eligibility. Next, he contends the trial court erred in failing to order the State to prepare a sentencing scoresheet.
Gage’s first contention is the same one rejected by this Court in Moore v. State, 455 So. 2d 535 (Fla. 1st DCA 1984), where we held an affirmative selection is all that is required. We reject this contention on authority of Moore, but certify the following question to the Supreme Court as one of great public importance:
When a defendant who committed a crime before 1 October 1983 affirmatively selects sentencing pursuant to the sentencing guidelines, must the record show the defendant knowingly and intelligently waived the right to parole eligibility?
The record of the sentencing hearing shows that the trial court did not have a scoresheet before it when it imposed the sentences challenged by this appeal. Gage’s counsel informed the court that she had prepared one but felt it was incorrect. The court then gave leave to file a correct one within five days of the hearing. There is no indication that the allegedly incorrect scoresheet was seen by the court. It does not refer to it nor does it appear in the record. Nor could it have had before it the scoresheet that does appear in the record, indicating a score of 14 points. Not only is there no date on this scoresheet to indicate when it was filed, but the court had just given Gage’s counsel five days past the hearing to file it. It therefore appears that there was no scoresheet before the court when it imposed the sentences, despite the admonition of Rule 3.701(d)(1), Florida Rules of Criminal Procedure, that “[t]he sentencing judge shall approve all score-sheets” and of the note to the rule: “Ultimate responsibility for assuring that score-sheets are accurately prepared rests with the sentencing court.”
The erroneous nature of this sentencing procedure is further pointed out by this court in Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984). This court recognized that “a trial judge may go outside the recommended range if he explains in writing the reasons for his departure” but that he “must make an initial determination of the recommended range for a defendant’s crime, and only then may he make a determination that circumstances justified departure, giving his reasons in writing.” Here, the trial judge could not have made this initial determination because he had no scoresheet before him when he passed sentence. We are compelled to reverse on this issue.
It is unnecessary for us to reach Gage’s third contention because of our reversal on his second contention. Nevertheless, we wish to point out that the method used by the trial court in stating his reason for departing from the sentencing guidelines is erroneous. See Jackson v. State, supra. Also, violation of a substantive condition of probation can be a clear and convincing reason for departing from the guidelines. See Bogan v. State, 454 So. 2d 686 (Fla. 1st DCA 1984); Carter v. State, 454 So. 2d 739 (Fla. 5th DCA 1984); and Addison v. State, 452 So. 2d 955 (Fla. 2d DCA 1984).
Affirmed in part, reversed in part, and remanded to the trial court for the purpose of complying with the provisions of Rule 3.701(d)(1), Florida Rules of Criminal Procedure, and after compliance for sentencing under the guidelines.
ERVIN, C.J., and ZEHMER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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Whitehead v. State, 467 So. 2d 779 (Fla. 1st DCA 1985)…contention is the same one first rejected by this Court in Moore v. State, 455 So. 2d 535 (Fla. 1st DCA 1984), where we held an affirmative selection is all that is required. We reject this contention on authority of Moore, but, as in Gage v. State, 461 So. 2d 202 (Fla. 1st DCA 1984), and Cochran v. State, 460 So. 2d 542 (Fla. 1st DCA 1984), certify the following question to the Supreme Court as one of great public importance: When a defendant who committed a crime before 1 October 1983 affirmatively selects…
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Ware v. State, 474 So. 2d 332 (Fla. 1st DCA 1985)…ant elected to be sentenced under the guidelines. The trial judge must make an initial determination of the recommended range for a defendant’s crime, and only then may he make a determination that the circumstances justify departure. Gage v. State, 461 So. 2d 202 (Fla. 1st DCA 1984). The trial judge could not have made this initial determination, because he had no score-sheet before him when he passed sentence. See also Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984). The decision of the trial court is…
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Barr v. State, 474 So. 2d 417 (Fla. 2d DCA 1985)…ce. If departure did occur, the trial court should have determined the presumptive sentence before departing from the guidelines, Doby v. State, 461 So. 2d 1360, (Pla. 2d DCA 1984), Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984), Gage v. State, 461 So. 2d 202 (Fla. 1st DCA 1984), and it should have expressed in writing the clear and convincing reasons essential to a valid departure. If on the other hand the trial court imposed a guidelines sentence, it should have prepared a scoresheet. Rule 3.701(d)(1)…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984)
- LaMarcus Edward Carter v. State, 454 So. 2d 739 (Fla. 2d DCA 1984)
- Glynn Addison, Jr. v. State, 452 So. 2d 955 (Fla. 2d DCA 1984)
- Moore v. State, 455 So. 2d 535 (Fla. 1st DCA 1984)
- Bogan v. State, 454 So. 2d 686 (Fla. 1st DCA 1984)