FREEMAN FRAZIER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A sentence imposed after probation revocation cannot rely on an amended rule that is not retroactively applicable, and absent a valid reason for departure, the sentence must be within the guidelines.
Defendant's probation was revoked, and he was sentenced to 4.5 years imprisonment, exceeding the recommended guidelines range of 30 months to 3.5 year…
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OTT, Judge.
Defendant appeals from his sentence outside the recommended scoresheet range. We vacate the sentence imposed and remand for resentencing not inconsistent with this opinion.
While defendant was serving three concurrent probationary terms, two seven-year terms for aggravated battery, and one five-year term for delivery of cannabis, his probation was revoked. He was subsequently sentenced to 4½ years’ imprisonment instead of some term within the recommended guidelines range of thirty months to 3½ years. The trial court departed from the guidelines by increasing defendant’s sentence one year, apparently relying on amended rule 3.701, Florida Rules of Criminal Procedure. Under amended rule 3.701, a sentence imposed after revocation of probation may be raised to the next higher cell without requiring a reason for departure. Defendant was sentenced on May 11, 1984, before the amended rule became effective on July 1, 1984. See Tackett v. State, 458 So. 2d 368 (Fla. 2d DCA 1984). The amended rule may not be retroactively applied. Carter v. State, 452 So. 2d 953, 954, n. 3 (Fla. 5th DCA 1984).
Notwithstanding amended rule 3.701, a violation of a substantive condition of probation may constitute a valid reason for sentencing beyond the presumptive sentence. Carter. However, the trial court must provide written reasons for departure or articulated reasons in the transcript of the hearing. Webster v. State, 461 So. 2d 965 (Fla. 2d DCA 1984). The transcript reveals that the court’s sole reason for departure was misplaced reliance on amended rule 3.701. Thus, the trial court failed to articulate any valid reason for sentencing outside the guidelines. This cause is remanded for resentencing under the guidelines in effect at the time of defendant’s sentencing from which he appealed.
Sentence VACATED and case REMANDED.
SCHEB, A.C.J., and NORRIS, WILLIAM A., Jr., Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Miller v. State, 468 So. 2d 1018 (Fla. 4th DCA 1985)…PER CURIAM. We deny appellee’s motion for rehearing. In doing so, we would like to comment on two cases dealing with the amendments to the sentencing guidelines. [*1019] Hopper v. State, 465 So. 2d 1269 (Fla. 3d DCA 1985), and Frazier v. State, 463 So. 2d 458 (Fla. 2d DCA 1985), involved situations where the trial court applied the amendments to the sentencing guidelines at a hearing that took place before the effective date of the amendment. In reversing, the appellate court stated that the amended guid…
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Stevie Leroy Lark v. State, 466 So. 2d 1120 (Fla. 2d DCA 1985)…PER CURIAM. Lark appeals from his sentences outside the range recommended by the sentencing guidelines. This appeal raises the same issue as that presented in Frazier v. State, 463 So. 2d 458 (Fla. 2d DCA 1985). For the reasons expressed in Frazier, we vacate the sentences imposed and remand this cause for resentencing. GRIMES, A.C.J., and SCHOONOVER, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.…
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Hopper v. State, 465 So. 2d 1269 (Fla. 2d DCA 1985)…of Criminal Procedure, 451 So. 2d 824 (Fla.1984). Since appellant was sentenced prior to July 1, 1984, and the amended rules may not be applied retroactively, the court erred to the extent it considered the recalculated scoresheet. Frazier v. State, 463 So. 2d 458 (Fla. 2d DCA 1985); Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984). Furthermore, the fact that the guidelines are going to be amended in the future is not a valid reason for departure. Accordingly, since the court could not consider the amende…
Previewing 3 of 5 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)
- Keithie's Roofing Co. Inc. v. LEE Parks Apts., Inc., 461 So. 2d 965 (Fla. 3d DCA 1984)
- Benny Lee Webster v. State, 461 So. 2d 965 (Fla. 2d DCA 1984)
- Tackett v. State, 458 So. 2d 368 (Fla. 2d DCA 1984)