KERRY LEMUEL DOBY A/K/A DILLAR S. BOOKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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This per curiam decision vacates and remands a defendant's sentences imposed at a probation revocation hearing because the trial court failed to follow Florida's sentencing guidelines procedures. The court sentenced the defendant to maximum sentences without using a guidelines scoresheet to determine the presumptive sentence, thereby preventing proper consideration of whether to depart from the guidelines.
The sentences are vacated and the case is remanded for resentencing because the trial court failed to follow the required sentencing guidelines procedures. A court cannot properly depart from the guidelines without first knowing what the presumptive sentence is under the guidelines.
[1] Sentences imposed without adherence to the procedures set forth in the sentencing guidelines, including the use of a guidelines scoresheet to determine a presumptive sent…
[2] A trial court must have sufficient information regarding presumptive sentences under the guidelines to make a valid decision on whether to depart from those guidelines.
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Join FLexlaw to unlock all legal intelligence“The court sentenced the defendant to the maximum sentences without the benefit of a guidelines scoresheet which would have provided a presumptive sentence.”
Establishes the procedural defect—the trial court failed to use the required sentencing guidelines scoresheet
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Join FLexlaw to unlock all legal intelligenceDefendant Kerry Lemuel Doby was sentenced at a probation revocation hearing on three counts of burglary and two counts of grand theft. The trial court…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
We vacate defendant’s sentences imposed at defendant’s probation revocation hearing on three counts of burglary and two counts of grand theft. We remand for resentencing. The trial court did not follow the procedures set forth in the sentencing guidelines. See Fla.R.Crim.P. 3.701 d. The court sentenced the defendant to the maximum sentences without the benefit of a guidelines scoresheet which would have provided a presumptive sentence. The court announced what purported to be reasons for departing from the guidelines. But, not knowing the presumptive sentences under the guidelines, the court was without sufficient information to decide whether to depart from the guidelines. See Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984).
The record is susceptible of an interpretation that the trial court did not inadvertently fail to follow the sentencing guidelines.
Parole is not available to “[a] person convicted of crimes committed on or after October 1, 1983, or any other person sentenced pursuant to sentencing guidelines.” Fla.Stat. 921.001(8). Compare Knight v. State, 455 So. 2d 457 (Fla. 1st DCA 1984). Any trial court which might consider disregarding the guidelines and simply sentencing a defendant under preguidelines criteria, while announcing reasons for the sentence which may be sufficient to justify a departure from the guidelines, should bear in mind that due to the absence of parole the defendant’s term of incarceration may well be greater than it would have been prior to the time the guidelines came into effect. The intent of the legislature in authorizing the guidelines and of the supreme court in promulgating them was “to promote uniformity in punishment meted out to those convicted of the same offense, whose prior conviction records and other relevant factors are comparable.” Id. The intent was not to create a device by which an individual trial judge, by disregarding the guidelines, may increase terms of incarceration over terms imposed prior to the time the guidelines came into effect.' If a trial court disregards those concepts and thereby contributes to disparities in sentences and terms of incarceration among similarly situated defendants, the purpose of the guidelines would be defeated and there would be a failure to uphold the law.
We remand for resentencing consistent with this opinion.
OTT, A.C.J., and DANAHY and LEHAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (19 total)
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Dilar S. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985)…five offenses. On appeal, this court held that the trial court did not follow the procedures set forth in the sentencing guidelines because the court departed from the presumptive sentence without benefit of a guidelines scoresheet. Doby v. State, 461 So. 2d 1360 (Fla.2d DCA 1984). Although the trial judge announced his reasons for departure, we determined that he was without sufficient information to decide whether to depart from the guidelines without first knowing the presumptive sentences. Doby. At rese…
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Davis v. State, 461 So. 2d 1361 (Fla. 2d DCA 1985)…an habitual offender as the reason for departing from the sentencing guidelines. This was a clear and convincing reason for departing from the guidelines. Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984). Unlike the circumstances in Doby v. State, 461 So. 2d 1360 (Fla. 2d DCA 1984), and Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984), the judge had been informed by appellant’s counsel that the presumptive sentence was three years and the guideline range encompassed two and one half to three and one half…
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Rowe v. State, 496 So. 2d 857 (Fla. 2d DCA 1986)…m any action of the trial court undertaken independently of the plea bargain. Finally, Rowe maintains that no scoresheet was prepared prior to the departure. It is true that we have required the preparation of a guideline scoresheet. Doby v. State, 461 So. 2d 1360 (Fla. 2d DCA 1984). Such omission, however, does not necessarily describe a reversible error. For example, a departure may be affirmed even in the absence of a scoresheet if it is clear from the record that all parties were aware of the presumptive…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984)
- Knight v. State, 455 So. 2d 457 (Fla. 1st DCA 1984)