LEON D. FINKLEA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Leon Finklea appealed his sentence imposed after probation revocation, arguing that he was improperly sentenced under Florida's sentencing guidelines for a crime committed before the guidelines' effective date without affirmatively selecting guidelines sentencing. The court agreed and reversed, holding that defendants whose crimes predate the guidelines have the right to choose between conventional sentencing with parole eligibility or affirmative selection of guidelines sentencing, and the trial court must ensure such choice is made.
A defendant whose crime was committed prior to the guidelines' effective date must affirmatively select guidelines sentencing; absent evidence of such affirmative selection, the defendant must be resentenced under conventional sentencing rules with parole eligibility. The trial court has a duty to determine whether the defendant affirmatively selected guidelines sentencing before imposing such a sentence.
[1] A defendant whose crime was committed prior to the effective date of sentencing guidelines must affirmatively select guidelines sentencing before the court can impose a s…
[2] The preparation of a sentencing guidelines scoresheet does not, by itself, prove that a defendant affirmatively selected guidelines sentencing.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Because the appellant was sentenced after October 1, 1983 for a crime committed prior to that date, he had the option of choosing conventional sentencing with the right to parole consideration, or of affirmatively selecting guidelines sentencing with no possibility of parole.”
Establishes the legal framework that defendants with pre-guidelines crimes had a choice between two sentencing regimes
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Join FLexlaw to unlock all legal intelligenceFinklea was charged with burglary and petit theft on March 2, 1983, pleaded nolo contendere, and was sentenced on May 5, 1983 to probation with incarc…
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THOMPSON, Judge.
The defendant appeals a guidelines sentence imposed after the revocation of his probation. He contends, inter alia, that his sentence is improper because the crime was committed prior to the effective date of the sentencing guidelines and he did not affirmatively select sentencing under the guidelines. We agree that the sentence is improper and reverse.
On March 2, 1983 defendant was charged with burglary of a dwelling and petit theft. He pleaded nolo contendere to the charges and on May 5, 1983 was adjudged guilty and placed on 2 years, 11 months probation, with 11 months incarceration as a condition of the probation. While on probation he committed two robberies. After a violation of parole hearing on April 9, 1984, he was sentenced to 15 years in state prison. Counsel for the defendant then pointed out to the court that the recommended guidelines sentence was 12 to 30 months. The trial judge announced that he was going outside of the guidelines because the defendant committed two robberies while still on probation for his prior crime and because physical harm was inflicted upon the victim in both robberies. These were the only references to the sentencing guidelines made during the hearing. Although a sentencing guidelines scoresheet was made a part of the record in this case, the mere fact that a scoresheet was prepared obviously does not constitute proof that the defendant affirmatively selected guidelines sentencing. Defendant’s attorney neither questioned nor objected to the court’s suggestion that it was applying the guidelines but was departing from the recommended sentence for the reasons stated.
We do not approve trial counsel’s failure to object to guidelines sentencing. His omission deprived the trial court of an opportunity to correct its error in failing to determine whether the defendant had affirmatively selected guidelines sentencing. However, the case law has imposed upon the trial judge the duty of determining this fact before sentencing a defendant under the guidelines, if the defendant’s crime was committed prior to the effective date of the guidelines. Because the appellant was sentenced after October 1, 1983 for a crime committed prior to that date, he had the option of choosing conventional sentencing with the right to parole consideration, or of affirmatively selecting guidelines sentencing with no possibility of parole. The record does not reveal any evidence that the defendant affirmatively made a choice to be sentenced pursuant to the guidelines. The sentence must therefore be reversed. Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984); Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984).
REVERSED and REMANDED for re-sentencing.
MILLS and SMITH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brinson v. State, 483 So. 2d 13 (Fla. 1st DCA 1985)…and Moses McFadden.2 We also agree with appellant Robert Brinson that his guidelines’ departure sentence must be reversed, since the record does not disclose that he affirmatively elected to be sentenced under the guidelines. See Finklea v. State, 470 So. 2d 90, 91 (Fla. 1st DCA 1985). We do not find Robert Brinson’s question whether the trial court’s contemplated sentence was “inside the guidelines” a sufficiently affirmative statement to meet the requirements of Rule 3.701, Florida Rules of Criminal Proc…
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Austin v. State, 500 So. 2d 262 (Fla. 1st DCA 1986)…r the fact that a guidelines scoresheet was prepared, nor the fact that Austin failed to object to the guidelines sentencing, vitiates the requirement of an affirmative selection. Lloyd v. State, 473 So. 2d 765 (Fla. 1st DCA 1985); Finklea v. State, 470 So. 2d 90 (Fla. 1st DCA 1985). Accordingly, we affirm the conviction and reverse the sentence imposed on Austin’s conviction and remand for resentenc-ing. SHIVERS and JOANOS, JJ., concur.…
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Edwins v. State, 475 So. 2d 1031 (Fla. 1st DCA 1985)…Thus, counsel sought improperly to make the guidelines selection conditional, and the circuit court apparently accepted this conditional selection. However, an affirmative selection under the guidelines may not be conditional. In Finklea v. State, 470 So. 2d 90 (Fla. 1st DCA 1985), this court held that the sentencing court has the duty to determine whether an affirmative selection has [*1033] been made before sentencing a defendant under the guidelines. Therefore, we must remand. Appellant also contends R…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984)
- Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984)