BERNARD EUGENE HIGGS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Appellant Higgs appealed the revocation of his probation and the resulting sentence. The court affirmed the probation revocation but vacated the sentence because the trial court improperly included 20 points for 'legal constraint' in the sentencing guidelines calculation, requiring resentencing.
The court struck the finding regarding failure to pay supervision costs as unsupported by evidence but affirmed the probation revocation based on two substantial violations. The sentence was vacated because the trial court improperly included 20 points for 'legal constraint' in the sentencing guidelines—a defendant being sentenced upon probation revocation was not under legal constraint at the time of the original offenses.
[1] A finding of probation violation unsupported by evidence must be stricken.
[2] Probation revocation may be affirmed if supported by other substantial violations, even if one alleged violation is unsubstantiated.
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Join FLexlaw to unlock all legal intelligence“it is clear that a trial court may properly use a probation violation as a reason to enhance a defendant's presumptive sentence established under the sentencing guidelines”
Establishes the general rule that probation violations can justify sentence enhancement
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Join FLexlaw to unlock all legal intelligenceHiggs pleaded guilty to grand theft and burglary and was placed on probation for three years. Several months later, he was charged with another burgla…
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HENDRY, Judge.
Appellant pleaded guilty to charges of grand theft and burglary. He was adjudicated guilty and placed on probation for a total of three years, for both offenses. Several months later, appellant was charged by information with another burglary. An affidavit of probation violation was filed, alleging that appellant had failed to pay costs of supervision, and had committed the offenses of burglary and trespass while on probation. Following a hearing, the trial court revoked appellant’s probation and sentenced him under the sentencing guidelines, Fla.R.Crim.P. 3.701, to two concurrent five year sentences of imprisonment. This appeal is taken from the order revoking probation and imposing sentence.
It is contended, first, that the trial court erred in finding that appellant had failed to pay supervision costs and, second, that the trial court erred in sentencing appellant to an enhanced sentence where the court expressly relied upon a miscalculated recommended sentence under the guidelines. We find merit in both of these contentions.
The finding in the order under review that appellant failed to pay supervision costs is stricken as being unsupported by the evidence. Edwards v. State, 439 So. 2d 1028 (Fla. 3d DCA 1983). We note, however, that appellant does not challenge, and we shall not disturb, the revocation of probation, since it is supported by the showing of two additional substantial violations of probation. Edwards v. State, 439 So. 2d at 1029.
Regarding appellant’s second contention, it is clear that a trial court may properly use a probation violation as a reason to enhance a defendant’s presumptive sentence established under the sentencing guidelines. Tucker v. State, 464 So. 2d 211 (Fla. 3d DCA 1985); 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); Fla.R.Crim.P. 3.701(d)(14). However, this court held in Tucker v. State, 464 So. 2d at 212, which we now follow, that an incorrectly calculated minimum-maximum sentence range under the guidelines constitutes an erroneous base upon which the trial court exercises its discretion in aggravating the sentence, and requires reversal for resentencing, even in the absence of a contemporaneous objection. In the instant case, the appellant objected to the inclusion of 20 points in his score under the guidelines for being under “legal constraint” at the time of the offense(s) for which he was being sentenced, i.e., the grand theft and burglary. It is established that a defendant being sentenced upon revocation of his probation was not under legal constraint at the time he committed the offenses which gave rise to his probation and for which he is being sentenced. Daniels v. State, 462 So. 2d 51 (Fla. 3d DCA 1984); Burke v. State, 460 So. 2d 1022 (Fla. 2d DCA 1984); Carter v. State, 452 So. 2d at 954.
Accordingly, the order revoking probation is affirmed, as modified by striking the finding relative to supervision costs; the sentence imposed is vacated and the cause remanded for resentencing. The appellant need not be present for the imposition of the corrected sentence.
Affirmed in part, as modified; reversed in part, and remanded.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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State v. Anderson, 905 So. 2d 111 (Fla. 2005)…was imposed in accordance with a valid plea agreement, have the sentences been affirmed under the harmless error doctrine despite the erroneous score. Sellers v. State, 578 So. 2d 339, 341 (Fla. 1st DCA) (citations omitted) (quoting Higgs v. State, 470 So. 2d 75, 76 (Fla. 3d DCA 1985)), approved on other grounds, 586 So. 2d 340 (Fla.1991); see, e.g., Mooney v. State, 864 So. 2d 60, 62 (Fla. 4th DCA 2003) (affirming as harmless the denial of a claim of scoresheet calculation error because the record demonstr…
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Louie Anthony Sellers v. State, 578 So. 2d 339 (Fla. 1st DCA 1991)…ce range under the guidelines constitutes an erroneous base upon 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 er…
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Claro E. Guardado v. State, 562 So. 2d 696 (Fla. 3d DCA 1990)…scoresheet should include points for legal constraint. Under the sentencing guidelines as applied to the present facts, the inquiry is legal constraint at the time of the original offense, not at the time of revocation of probation. Higgs v. State, 470 So. 2d 75, 76 (Fla. 3d DCA 1985); Fla.R.Crim.P. 3.701(d)6. See generally Ree v. State, 14 [*698] F.L.W. 565 (Fla. Nov. 16, 1989); Lambert v. State, 545 So. 2d 838, 841-42 (Fla.1989); Walker v. State, 498 So. 2d 688 (Fla. 3d DCA 1986). The one-cell increase pe…
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)
- Glynn Addison, Jr. v. State, 452 So. 2d 955 (Fla. 2d DCA 1984)
- Edwards v. State, 439 So. 2d 1028 (Fla. 3d DCA 1983)
- Bogan v. State, 454 So. 2d 686 (Fla. 1st DCA 1984)
- Tucker v. State, 464 So. 2d 211 (Fla. 3d DCA 1985)
- Burke v. State, 460 So. 2d 1022 (Fla. 2d DCA 1984)
- Daniels v. State, 462 So. 2d 51 (Fla. 3d DCA 1984)