DAVID E. HARRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harris appealed his grand theft sentence, challenging whether he knowingly waived his right to parole eligibility and whether the trial court properly departed from sentencing guidelines. The court found that Harris affirmatively selected guideline sentencing and that probation violation constituted sufficient grounds for departure, but remanded because the trial court failed to reduce its reasons for departure to writing.
A knowing and intelligent waiver of parole eligibility rights requires only that the defendant affirmatively select guideline sentencing. Probation violation constitutes a clear and convincing reason to depart from guidelines. However, trial courts must reduce their reasons for departure to writing, and failure to do so requires remand for resentencing.
[1] A defendant affirmatively selecting to be sentenced under the sentencing guidelines is sufficient to demonstrate a knowing and intelligent waiver of parole eligibility.
[2] Violation of probation is a clear and convincing reason sufficient to warrant a departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“all that is required is a showing that the defendant affirmatively selected to be sentenced under the sentencing guidelines”
Establishes the standard for valid waiver of parole eligibility rights in guideline sentencing cases
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Join FLexlaw to unlock all legal intelligenceHarris pled guilty to grand theft and was placed on probation on April 15, 1983. On November 2, 1983, he was charged with technical probation violatio…
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SHIVERS, Judge.
Harris appeals his sentence for grand theft. He contends that at sentencing he did not knowingly and intelligently waive his right to parole eligibility. Appellant further argues that the trial court erred in departing from the sentencing guidelines, that the departure was excessive and that the court erred in failing to reduce its reasons for departure to writing. We remand for resentencing.
On appellant’s assertion that there must be a knowing and intelligent waiver of his right to parole eligibility, we have held that all that is required is a showing that the defendant affirmatively selected to be sentenced under the sentencing guidelines. Moore v. State, 455 So. 2d 535 (Fla. 1st DCA 1984); Kiser v. State, 455 So. 2d 1071 (Fla. 1st DCA 1984). Appellant pled guilty to grand theft and was placed on probation April 15, 1983. On November 2, 1983, he was charged with several technical violations as well as violation of the law by stealing two cameras from his employer, to which he pled guilty. At sentencing he affirmatively selected to be sentenced pursuant to the guidelines with the knowledge that the judge intended to exceed those guidelines.
In passing sentence, the trial judge acknowledged that the presumptive sentence recommended by the guidelines was any non-prison sanction. The court, however, imposed a sentence of five years, because the appellant had violated his probation, considering that sufficient reason to aggravate the sentence. This decision was made orally, and was not reduced to writing other than in the transcript for appeal.
Violation of probation has been consistently held to be a clear and convincing reason sufficient to warrant a departure from the guidelines. Bogan v. State, 454 So. 2d 686 (Fla. 1st DCA 1984), Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984), Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984). Once clear and convincing reasons exist to depart are stated and so long as the sentence imposed is within statutory limits, the appellate courts will not disturb the trial court’s discretion. Hankey v. State, 458 So. 2d 1143 (Fla. 5th DCA 1948), Whitlock v. State, 458 So. 2d 888 (Fla. 5th DCA 1984).
However, since the trial court failed to reduce his reasons in writing, we vacate and remand for resentencing consistent with this court’s holding in Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984); Roux v. State, 455 So. 2d 495 (Fla. 1st DCA 1984). We also note the conflict with Harvey v. State, 450 So. 2d 926 (Fla. 4th DCA 1984) and certify, as we did in Jackson, supra, the conflict pursuant to Rule 9.030(a)(2)(A)(vi) of the Florida Rules of Appellate Procedure.
Sentence VACATED and case REMANDED for resentencing.
BOOTH, J., and TILLMAN PEARSON (Ret.), Associate Judge, concur. ON CERTIFICATION OF CONFLICT
PER CURIAM.
Pursuant to Rule 9.030(a)(2)(A)(vi), Florida Rules of Appellate Procedure, we certify conflict with the authorities cited in Oden v. State, 463 So. 2d 313 (Fla. 1st DCA, 1985), on the issue of the need for written reasons for departing from the sentencing guidelines.
BOOTH and SHIVERS, JJ., and TILLMAN PEARSON (Ret.), Associate Judge, concur.
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Cited By (11 total)
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Vance v. State, 475 So. 2d 1362 (Fla. 5th DCA 1985)…ng stolen property, for which offense he was placed on probation; and he had committed a prior misdemeanor. . We do not reach this issue in this case, but note a conflict between the district courts of appeal on its resolution. See Harris v. State, 465 So. 2d 545 (Fla. 1st DCA 1985); Schmidt v. State, 468 So. 2d 1112 (Fla. 1st DCA 1985); Odea v. State, 463 So. 2d 313 (Fla. 1st DCA 1984); Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984); contra, Boehmer v. State, 472 So. 2d 555 (Fla. 5th DCA 1985); Hernan…
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Scott v. State, 465 So. 2d 1359 (Fla. 5th DCA 1985)…1, 1983. . See Key v. State, 452 So. 2d 1147 (Fla. 5th DCA), review denied, 459 So. 2d 1041 (Fla.1984). . The trial judge’s departure sentence may not be subject to the remaining jurisdiction of the Florida Parole Commission. See Harris v. State, 465 So. 2d 545 (Fla. 1st DCA 1985); § 921.001(8), Fla.Stat. (1983), Resolution of that issue is unnecessary for our conclusion herein.…
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Edwins v. State, 475 So. 2d 1031 (Fla. 1st DCA 1985)…gument that a knowing, intelligent waiver of parole eligibility is required for treatment under the guidelines of one who committed an offense before the effective date of the rule; rather, only an affirmative selection is required. Harris v. State, 465 So. 2d 545 (Fla. 1st DCA 1985), Kiser v. State, 455 So. 2d 1071 (Fla. 1st DCA 1984), Moore v. State, 455 So. 2d 535 (Fla. 1st DCA 1984). At the revocation hearing, Assistant Public Defender Sutton represented Edwins and made the following statement: [I] woul…
Previewing 3 of 11 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)
- Jackson v. State, 454 So. 2d 691 (Fla. 1st DCA 1984)
- Harvey v. State, 450 So. 2d 926 (Fla. 4th DCA 1984)
- Moore v. State, 455 So. 2d 535 (Fla. 1st DCA 1984)
- Roux v. State, 455 So. 2d 495 (Fla. 1st DCA 1984)
- Kiser v. State, 455 So. 2d 1071 (Fla. 1st DCA 1984)
- Oden v. State, 463 So. 2d 313 (Fla. 1st DCA 1984)
- Hankey v. State, 458 So. 2d 1143 (Fla. 5th DCA 1984)
- Bogan v. State, 454 So. 2d 686 (Fla. 1st DCA 1984)
- Whitlock v. State, 458 So. 2d 888 (Fla. 5th DCA 1984)