BOBBY FLOYD TUCKER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Bobby Floyd Tucker appealed the revocation of his probation and a ten-year sentence on two convictions. The court affirmed the probation violation finding and the use of that violation as sentencing aggravation, but reversed and remanded because of an arithmetic miscalculation in the sentencing guidelines point computation.
The court held that: (1) the record clearly showed willful probation violation; (2) a trial court is justified in using a probation violation as reason for enhancing a sentence; (3) articulation of reasons in the record satisfies the requirement, without a separate written order; and (4) an arithmetic miscalculation in sentencing guideline points, even if not objected to at trial, is an error that may be raised on appeal and warrants reversal and resentencing.
[1] A trial court is justified in using a probation violation as a reason for enhancing a sentence.
[2] A trial court's articulation of reasons for aggravating a sentence in the record is sufficient, even without a separate written order, if the aggravation is otherwise val…
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Join FLexlaw to unlock all legal intelligence“A trial court is justified in using the probation violation as a reason for enhancing a sentence.”
Establishes that probation violations are valid aggravating factors in sentencing, rejecting Tucker's argument that they cannot be used for this purpose.
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Join FLexlaw to unlock all legal intelligenceTucker was convicted on two counts and placed on probation. He subsequently violated the terms of his probation. At sentencing, the trial court articu…
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BARKDULL, Judge.
By this appeal we are called upon to review an order revoking probation and sentencing the appellant to a total of ten years upon two convictions. The appellant urges error in that there was no willful showing of violation of probation terms. The record is to the contrary. Kord v. State, 361 So. 2d 800 (Fla. 3d DCA 1978). The appellant contends that the trial court cannot use the probation violation as a reason for aggravating his sentencing under the application guidelines. We do not agree. A trial court is justified in using the probation violation as a reason for enhancing a sentence. Bogan v. State, 454 So. 2d 686 (Fla. 1st DCA 1984); Addison v. State, 452 So. 2d 955 (Fla. 2d DCA 1984); Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984).
The appellant also complains that the trial court, while articulating his reason in the record for aggravating a sentence, failed to enter a written order reflecting these reasons. We do not find this error. As long as the reasons are articulated in the record, if the aggravation is otherwise valid, the trial court will be affirmed. See and compare Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984); Harvey v. State, 450 So. 2d 926 (Fla. 4th DCA 1984); Pimentel v. State, 442 So. 2d 228 (Fla. 3d DCA 1983).
The last error urged for reversal is an erroneous calculation in the addition of the points to be charged against the appellant for purposes of considering the minimum-maximum sentence to be accorded, and thereby having an erroneous base upon which the trial court exercised its discretion in aggravating the total sentence. We find that although no objection was made at the time of sentencing, this error as to arithmatic miscalculation may be raised for the first time on appeal, State v. Rhoden, 448 So. 2d 1013 (Fla.1984); Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984); Brumley v. State, 455 So. 2d 1096 (Fla. 5th DCA 1984), and that considering the admitted erroneous calculation, the sentence be and the same is hereby vacated and set aside and the matter is returned to the trial court for a resentencing after a new computation in accordance with the sentencing guidelines statute, Section 921.001(5), Florida Statutes (1983), and the applicable authority. Upon such remand, the trial court may, at its discretion, impose anything from the minimum sen tencing required under the guidelines to a total of ten years.
Reversed and remanded with directions.
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Citator
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State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)…on of a sentence does not preclude appellate review of sentencing errors. Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984); Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984); Ramsey v. State, 462 So. 2d 875 (Fla. 2d DCA 1985); Tucker v. State, 464 So. 2d 211 (Fla. 3d DCA 1985).” Whitfield, 471 So. 2d at 634. However, the district court was apparently troubled, and rightly so, by the implications of a rule of law which treats failure to advise the sentencing judge of error as of no consequence, and by la…
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Louie Anthony Sellers v. State, 578 So. 2d 339 (Fla. 1st DCA 1991)…which the trial court exercises its discretion in aggravating the sentence, and requires reversal for resentencing, even in the absence of a contemporaneous objection.” Higgs v. State, 470 So. 2d 75, 76 (Fla. 3d DCA 1985). See also, Tucker v. State, 464 So. 2d 211 (Fla. 3d DCA 1985). Only in circumstances where the appellate court is clearly con-, vinced that the defendant would have received the same sentence not withstanding the scoresheet error, such as where the sentence was imposed in accordance with a v…
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Peters v. State, 531 So. 2d 121 (Fla. 1988)…rule 3.701(d)(14), the trial court possessed the power to depart from the guidelines for violation of a substantive condition of probation.2 Hall v. State, 478 So. 2d 385 (Fla. 2d DCA 1985), review denied, 488 So. 2d 68 (Fla.1986); Tucker v. State, 464 So. 2d 211 (Fla. 3d DCA 1985), disapproved on other grounds, State v. Whitfield, 487 So. 2d 1045 (Fla.1986); Addison v. State, 452 So. 2d 955 (Fla. 2d DCA 1984); Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984). [*124] Thus, there was no ex post facto viola…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Learnhart Rhoden, 448 So. 2d 1013 (Fla. 1984)
- Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984)
- Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984)
- Glynn Addison, Jr. v. State, 452 So. 2d 955 (Fla. 2d DCA 1984)
- Mitchell v. State, 458 So. 2d 10 (Fla. 1st DCA 1984)
- Harvey v. State, 450 So. 2d 926 (Fla. 4th DCA 1984)
- Pimentel v. State, 442 So. 2d 228 (Fla. 3d DCA 1983)
- Bogan v. State, 454 So. 2d 686 (Fla. 1st DCA 1984)
- Kord v. State, 361 So. 2d 800 (Fla. 3d DCA 1978)
- Brumley v. State, 455 So. 2d 1096 (Fla. 5th DCA 1984)