GEORGE ROBERT JOYCE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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George Joyce appeals his sentencing for burglary and assault, challenging whether the trial court properly applied Florida's sentencing guidelines. The court held that the trial judge imposed a split sentence (prison plus probation) that exceeded the maximum guideline range without written justification, requiring remand for resentencing.
The trial court erred by imposing a total sanction that exceeded the maximum guideline range without written reasons for departure. The convictions and assault sentence are affirmed, but the case is remanded for resentencing in accordance with the sentencing guidelines or with proper written justification for any departure.
[1] A total sentence imposed under the sentencing guidelines cannot exceed the total guideline sentence unless a written reason for departure is provided.
[2] The contemporaneous objection rule does not apply to sentencing errors.
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Join FLexlaw to unlock all legal intelligence“If a split sentence is imposed (i.e., a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range, and the total sanction imposed cannot exceed the maximum guideline range.”
Establishes the controlling rule that total sanctions in split sentences cannot exceed the maximum guideline range
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Join FLexlaw to unlock all legal intelligenceJoyce was convicted of burglary and assault following a jury trial. His sentencing guideline score was eighty-one, resulting in a recommended sentence…
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FRANK D. UPCHURCH, Jr., Judge.
George Joyce appeals from judgments and sentences for burglary and assault. The sole question on appeal is whether the trial court erred in sentencing him under the guidelines.1 Joyce was convicted of burglary and assault following a jury trial. His score of eighty-one resulted in a recommended sentence under the guidelines of three years incarceration. At the sentencing hearing held on April 26,1984, Joyce was sentenced to three years imprisonment followed by three years probation on the burglary charge and a concurrent term of sixty days incarceration on the assault charge.
Florida Rule . of Criminal Procedure 3.701(d)(12) provides as follows:
Sentencing for separate offenses: A sentence must be imposed for each offense. However, the total sentence cannot exceed the total guideline sentence unless a written reason is given.
The Committee Note following this subsection provides as follows:
The sentencing court shall impose or suspend sentence for each separate count, as convicted. The total sentence shall not exceed the guideline sentence, unless the provisions of paragraph 112 are complied with.
If a split sentence is imposed (i.e., a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range, and the total sanction imposed cannot exceed the maximum guideline range. (emphasis added)
Here, a split sentence was imposed, but the total sanction imposed exceeded the maximum guideline range. No reason for departure appears on the scoresheet nor was one articulated by the trial judge at the sentencing hearing. Accordingly, the cause must be remanded for resentencing.
The state’s arguments are without merit. First, the state contends that the error was waived. This court has recently held that the contemporaneous objection rule does not apply to sentencing errors. See Walcott v. State, 460 So. 2d 915 (Fla. 5th DCA 1984); Crews v. State, 456 So. 2d 959 (Fla. 5th DCA 1984); Hackney v. State, 456 So. 2d 1209 (Fla. 5th DCA 1984). See also State v. Rhoden, 448 So. 2d 1018 (Fla.1984).
Second, the state claims that the Committee Notes are mere “dicta” and are not entitled to the same force and effect as the sentencing guideline rule itself. This is clearly erroneous. In The Florida Bar: Amendment to Rules of Criminal Procedure (3.701, 3.988 — Sentencing Guidelines), 451 So. 2d 824 (Fla.1984), the Florida Supreme Court specifically stated that the Committee Notes have been adopted as part of the rules.
Finally, the state points out that the Committee Note to rule 3.701(d)(12) has been amended to read as follows:
This amendment was adopted by the Florida Supreme Court on May 8, 1984, but did not become effective until July 1, 1984, upon adoption by the Legislature. Ch. 84-328, Laws of Fla.; § 921.001(4)(b), Fla.Stat. (1983). Here, Joyce was sentenced on April 26,1984, prior to the effective date of the amendment. As this court has previously noted, such an amendment cannot be applied retroactively. See Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984); Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984). Joyce’s convictions for burglary and assault and the sentence for assault are affirmed, and the cause is remanded for sentencing to the recommended guideline sentence or to a departure sentence imposed in accordance with the sentencing guidelines.
AFFIRMED in part, REVERSED and REMANDED in part.
DAUKSCH and COWART, JJ., concur. . Fla.R.Crim.P. 3.701.
. Paragraph 11 requires that any sentence outside the guidelines be accompanied by a written statement delineating the reasons for departure.
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Citator
Cited By (13 total)
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Myren Wayne Larson v. State, 572 So. 2d 1368 (Fla. 1991)…enced to a term of years greater than the legislature mandated and, if no objection was made at the time of sentencing, the defendant could not appeal the illegal sentence. Accord Merchant v. State, 509 So. 2d 1101, 1102 (Fla.1987); Joyce v. State, 466 So. 2d 433, 434 (Fla. 5th DCA 1985); Walcott v. State, 460 So. 2d 915 (Fla. 5th DCA 1984), approved, 472 So. 2d 741 (Fla.1985); Crews v. State, 456 So. 2d 959 (Fla. 5th DCA 1984), review denied, 464 So. 2d 556 (Fla.1985). The same logic applies equally to ill…
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Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985)…al Procedure (3.701; 3.988 — Sentencing Guidelines), 451 So. 2d 824 (Fla.1984). It was therefore in effect on October 26, 1984, when the judge sentenced Derrick and Derrick should have the [*1357] benefit of the amended rule. Compare Joyce v. State, 466 So. 2d 433 (Fla. 5th DCA 1985) (Amendment inapplicable to defendant sentenced before its effective date). In this case, the sentencing judge gave as his sole reason for a “departure” sentence the fact that Derrick violated his community control conditions fol…
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Jock Everett Riggins v. State, 477 So. 2d 663 (Fla. 5th DCA 1985)…of Criminal Procedure (3.701; 3.988 — Sentencing Guidelines, 451 So. 2d 824 (Fla.1984). It was therefore in effect on January 11, 1985 when the judge sentenced Riggins and Riggins should have the benefit of the amended rule. Compare Joyce v. State, 466 So. 2d 433 (Fla. 5th DCA 1985) (Amendment inapplicable to defendant sentenced before its effective date).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- THE Fla. BAR: Amendment to Rules of Crim. Procedure (3.701, 451 So. 2d 824 (Fla. 1984)
- Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984)
- Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984)
- Hackney v. State, 456 So. 2d 1209 (Fla. 5th DCA 1984)
- Walcott v. State, 460 So. 2d 915 (Fla. 5th DCA 1984)
- Ennis v. State, 456 So. 2d 959 (Fla. 1st DCA 1984)