RUSSELL JOSEPH BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Russell Brown appeals his sentences on five burglary counts and revocation of probation. The court reversed both the sentencing under guidelines and the probation revocation, finding the trial court lacked affirmative selection for guideline sentencing and revoked probation based on reasons not alleged in the violation affidavit.
The trial court erred in both respects. Sentencing guidelines may only be applied to pre-October 1, 1983 crimes where the defendant affirmatively selects guideline sentencing, and probation cannot be revoked for reasons not alleged in the charging affidavit. The sentences and probation revocation are reversed and remanded for resentencing.
[1] Sentencing guidelines for crimes committed prior to their effective date may only be applied if the defendant affirmatively selects to be sentenced under the guidelines.
[2] A defendant's probation cannot be revoked for reasons not alleged in the charging affidavit.
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Join FLexlaw to unlock all legal intelligence“The sentencing guidelines may be applied to crimes occurring prior to October 1, 1983, only where the defendant affirmatively selects to be sentenced under the guidelines.”
Establishes the legal requirement for affirmative selection when applying guidelines to pre-October 1, 1983 crimes
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Join FLexlaw to unlock all legal intelligenceOn July 27, 1983, Brown pleaded guilty to twelve cases involving burglaries and thefts and was placed on fifteen years probation. In January 1984, he …
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HALL, Judge.
Appellant Russell Brown appeals his sentences on five counts of burglary and the subsequent revocation of his probation. Appellant raises several points on appeal, two of which merit discussion. He first contends the trial court erred in sentencing him under the guidelines absent his affirmative selection. He also contends the trial court erred in revoking his probation for reasons not specified in the affidavit of violation. We agree on both points and, therefore, reverse.
On July 27, 1983, appellant entered guilty pleas in twelve separate cases involving a series of burglaries and thefts (Case Nos. 83-1364-75) and was placed on fifteen years probation. Appellant was subsequently accused of violating his probation through the theft of a bicycle.
On January 27, 1984, appellant was charged with five additional counts of burglary (Case No. 83-3686), all of which were committed prior to October 1, 1983. These burglary counts bore no relation to the charged probation violation. On July 9, 1984, a jury trial ensued on the newly charged burglary counts, with the jury finding appellant guilty as charged. Prior to trial, appellee filed a motion requesting the court to rule on the probation violation at the conclusion of the proceeding. However, the court deferred this matter to a later date.
Sentencing in case number 83-3686 occurred on August 6, 1984. Appellant was sentenced under the guidelines to ten years imprisonment. The parties reconvened before the court on August 10, 1984, for sentencing on the violation of probation. At that time, the court found appellant in violation of his probation by virtue of his convictions and sentences in case number 83-3686. The court sentenced appellant to five years imprisonment on each of the underlying burglary counts and five years probation on each of the grand theft counts. The sentences entered in these cases and case number 83-3686 were to run concurrently with each other. The probation was to become effective after appellant’s release from confinement.
As to appellant’s first point, we agree that the trial court erred in applying the guidelines. The sentencing guidelines may be applied to crimes occurring prior to October 1, 1983, only where the defendant affirmatively selects to be sentenced under the guidelines. § 921.001(4)(a), Fla.Stat. (1983); In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So. 2d 848 (Fla.1983); Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985); Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984); Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984). Here, the transcript of the August 6, 1984, sentencing is devoid of any showing that either appellant or his counsel affirmatively selected the guidelines. The only reference to the guidelines came after the court entered the sentence. At this point, counsel for appellant stated: “Your honor, I didn’t receive the guidelines sheet. I was — it was my understanding that the guidelines were not going to call for that much time.” This statement can in no way be considered as an election to be sentenced under the guidelines. Accordingly, we reverse appellant's sentences in case number 83-3686 and remand for resentencing.1
As to appellant’s additional point, we agree that the trial court erred in revoking appellant’s probation. The law is well settled that a defendant’s probation cannot be revoked for reasons not alleged in the charging affidavit. Clark v. State, 442 So. 2d 1076 (Fla. 3d DCA 1983); Hodges v. State, 370 So. 2d 78 (Fla. 2d DCA 1979); Mack v. State, 342 So. 2d 562 (Fla. 2d DCA 1977); Hooks v. State, 207 So. 2d 459 (Fla. 2d DCA 1968). Here, the only criminal offense alleged in the affidavit of violation was a bicycle theft, a crime for which appellant was never charged. At the revocation hearing held on August 10, 1984, however, the trial court made no mention, nor was any evidence presented, of the alleged theft. Rather, it predicated the revocation of appellant’s probation solely on the burglary convictions in case number 83-3686. Accordingly, we reverse the order revoking appellant’s probation and the sentences based thereon.
REVERSED and REMANDED.
SCHOONOVER, A.C.J., and FRANK, J., concur. . In view of our disposition of this point, we need not address appellant’s additional contention that the trial court erred in departing from the recommended guidelines sentence.
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Citator
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Johnson v. State, 811 So. 2d 749 (Fla. 2d DCA 2002)…16, 2000. The State concedes, and the record shows this to be the case. A trial court is not permitted to revoke probation on conduct not charged in the affidavit of revocation. Parminter v. State, 762 So. 2d 966 (Fla. 2d DCA 2000); Brown v. State, 468 So. 2d 439 (Fla. 2d DCA 1985). Therefore, because the allegation that Johnson was not home on April 11, 2000, was not charged, it is not a permissible ground for the revocation.2 The State argues that the revocation should be affirmed because the allegation t…
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LeMASTER v. State, 765 So. 2d 259 (Fla. 1st DCA 2000)…voking Appellant’s community control and imposing a prison sentence. Revocation based upon condition 9a was improper because the affidavits of violation of community control did not charge Appellant with violating this condition. See Brown v. State, 468 So. 2d 439, 440-41 (Fla. 2d DCA 1985). It is unclear from the record whether the trial court would have revoked Appellant’s community control based solely upon Appellant’s failure to remain confined to his approved residence on two separate occasions. Theref…
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Smith v. State, 502 So. 2d 77 (Fla. 3d DCA 1987)…proves involvement only as an accessory after the fact. Jackson v. State, 436 So. 2d 1085 (Fla. 3d DCA 1983); A.Y.G. v. State. Likewise probation cannot be revoked where the proof supports only an offense other than the one charged. Brown v. State, 468 So. 2d 439 (Fla. 2d DCA 1985). Nothing in the record excludes the reasonable inference that the defendant had no knowledge of the robbery until after it occurred.1 Reversed and remanded. . There is no double jeopardy bar to the state filing a new affidavit o…
Authorities Cited
- In re Rules of Criminal Procedure (sentencing Guidelines), 439 So. 2d 848 (Fla. 1983)
- Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984)
- Hooks v. State, 207 So. 2d 459 (Fla. 2d DCA 1968)
- Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984)
- Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985)
- Mack v. State, 342 So. 2d 562 (Fla. 2d DCA 1977)
- Hodges v. State, 370 So. 2d 78 (Fla. 2d DCA 1979)
- Clark v. State, 442 So. 2d 1076 (Fla. 3d DCA 1983)