KENNETH M. PATTERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Patterson appeals sentences imposed under Florida's sentencing guidelines, arguing they violated his rights because he did not affirmatively elect guideline sentencing. The First District Court of Appeal agrees, holding that the trial court erroneously imposed guideline sentences without evidence that Patterson knowingly and intelligently waived his protection against ex post facto laws.
The sentences imposed under the sentencing guidelines must be vacated because the record is silent as to whether Patterson knowingly and intelligently waived his protection against ex post facto laws. The statute requires that a defendant must affirmatively select guideline sentencing, placing the burden on the defendant, not the court.
[1] A sentence imposed under sentencing guidelines is invalid if the record does not affirmatively demonstrate that the defendant knowingly and intelligently waived the prote…
[2] For offenses committed prior to October 1, 1983, a defendant must affirmatively select guideline sentencing for non-capital and life felonies to be sentenced under the gu…
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Join FLexlaw to unlock all legal intelligence“because the record is silent as to whether appellant knowingly and intelligently waived his protection against the imposition of ex post facto laws by selecting guideline sentencing, the sentences must be vacated”
Statement of the court's holding regarding the fatal defect in the sentencing record
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Join FLexlaw to unlock all legal intelligencePatterson was convicted by jury on September 30, 1983, of burglary of a dwelling with a dangerous weapon, sexual battery with a deadly weapon, and agg…
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ERVIN, Chief Judge.
Patterson appeals two sentences which he claims were violative of the sentencing guidelines law. We agree with the first contention raised, asserting that because the record is silent as to whether appellant knowingly and intelligently waived his protection against the imposition of ex post facto laws by selecting guideline sentencing, the sentences must be vacated.
Patterson was charged with the offenses of burglary of a dwelling while arming himself with a dangerous weapon, sexual battery with the use of a deadly weapon upon a person over the age of eleven years, and aggravated battery. He was found guilty by a jury of all three offenses as charged on September 30, 1983. Five days thereafter, he was given 75 years on the sexual battery count (a non-guideline sentence in that the offense was a life-felony, see Section 921.001(4)(a), Florida Statutes), 20 years on the burglary count, and three-and-one-half years on the aggravated battery count. As to the latter two sentences, imposed under the guidelines, the court departed from the recommended range. Defense counsel challenged the constitutionality of the guidelines and objected throughout sentencing. Although all the offenses occurred before October 1, 1983, and Section 921.001(4)(a), Florida Statutes, requires that a defendant must affirmatively select guideline sentencing as to all non-capital and life felonies which are committed prior to October 1, 1983, the court nonetheless found it could impose such sentences as to the two offenses in question, because the defendant did not elect otherwise.
The lower court’s holding was clearly erroneous. The statute places the burden on the defendant to affirmatively select guideline sentencing — not the contrary. See Randolph v. State, 458 So. 2d 64 (Fla. 1st DCA 1984) (in the absence of a defendant’s affirmative selection of guideline sentencing, she must be sentenced in accordance with the procedure in effect prior to the adoption of sentencing guidelines). Contrast Jones v. State, 459 So. 2d 1151 (Fla. 1st DCA 1984) (defendant clearly selected guideline sentencing, notwithstanding the failure of the record to disclose that in making such selection, defendant was aware she was waiving her right to consideration for parole).
The two sentences imposed pursuant to the guidelines are reversed and vacated, and the cause is remanded to the trial court for resentencing as to them.
WENTWORTH, J., concurs.
BOOTH, J., dissents.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Holt v. State, 472 So. 2d 551 (Fla. 1st DCA 1985)…ior to their October 1, 1983 effective date, is the defendant’s affirmative selection to be so sentenced. Here, the record does not indicate such an affirmative selection on appellant’s part. That, in itself, is reversible error. Patterson v. State, 462 So. 2d 33 (Fla. 1st DCA 1984); Randolph v. State, 458 So. 2d 64 (Fla. 1st DCA 1984). The error was compounded, however, by the trial court’s failure to put in writing its reasons for departing from the guidelines. Again, that omission constitutes reversible e…
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State v. Zipfel, 537 So. 2d 1099 (Fla. 3d DCA 1989)…ules of Criminal Procedure.2 Therefore we indicate that the trial court correctly answered the certified question, although it may have been for the wrong reason. See and compare Combs v. State, [*1100] 436 So. 2d 93 (Fla.1983); Patterson v. State, 462 So. 2d 33 (Fla. 1st DCA 1985); Zirkle v. State, 410 So. 2d 948 (Fla. 3d DCA 1982); Robinson v. State, 393 So. 2d 33 (Fla. 1st DCA 1981). Accordingly, the order of dismissal appealed herein is hereby affirmed. AFFIRMED. BARKDULL, J., and ORFINGER, Associate…
Authorities Cited
- Randolph v. State, 458 So. 2d 64 (Fla. 1st DCA 1984)
- In the Interest of B.B., 459 So. 2d 1151 (Fla. 4th DCA 1984)