JEFFREY M. AMES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jeffrey Ames appealed from a probation revocation and departure sentence imposed under Florida's sentencing guidelines. The court affirmed the probation revocation but reversed and remanded the sentence because the trial court erred in applying the guidelines without Ames's affirmative election, since his original probation predated the October 1, 1983 guidelines effective date.
When a defendant is placed on probation prior to October 1, 1983 and his probation is revoked after that date, the defendant must affirmatively elect to be sentenced under the guidelines for them to apply. The trial court therefore erred in applying the guidelines without such an election.
[1] A defendant placed on probation prior to October 1, 1983, who violates probation after that date, must affirmatively elect to be sentenced under the guidelines for them t…
[2] A sentence imposed under the guidelines without a defendant's affirmative election, when probation was granted prior to the guidelines' effective date and revoked thereaf…
Previewing 2 of 3 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“When a defendant is placed on probation prior to October 1, 1983 and his probation is revoked after that date, the defendant must affirmatively elect to be sentenced under the guidelines for them to apply.”
Establishes the core holding that affirmative election is required when pre-guidelines probation is revoked post-guidelines
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAmes pleaded guilty to sexual battery and was originally sentenced on July 18, 1978. While on probation for that crime, he committed a subsequent sexu…
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DAUKSCH, Judge.
Appellant appeals from an order revoking his probation and the imposition of a departure sentence. He has raised three points on appeal only one of which has merit. Appellant contends that he was illegally sentenced under the guidelines without his election. After pleading guilty to sexual battery, appellant was originally sentenced on July 18, 1978. While on probation for that crime, appellant committed a subsequent sexual battery on October 18, 1982. At the revocation hearing the court found that appellant violated the conditions of his probation by committing the latter sexual battery but stated that he had to be sentenced under the guidelines even though both crimes occurred prior to October 1, 1983, the effective date of the guidelines. See § 921.001(4)(a), Fla.Stat. (1983); Rule 3.701, In re Rules of Criminal Procedure (Sentencing Guidelines), 439 So. 2d 848 (Fla.1983). This was error. When a defendant is placed on probation prior to October 1, 1983 and his probation is revoked after that date, the defendant must affirmatively elect to be sentenced under the guidelines for them to apply. See Smith v. State, 465 So. 2d 1372 (Fla. 2d DCA 1985); Jordon v. State, 460 So. 2d 477 (Fla. 2d DCA 1984); Mack v. State, 458 So. 2d 347 (Fla. 5th DCA 1984); Boyett v. State, 452 So. 2d 958 (Fla. 2d DCA 1984) Aff'd. State v. Boyett, 467 So. 2d 997 (Fla.1985); Duggar v. State, 446 So. 2d 222 (Fla. 1st DCA 1984). See also Irving v. State, 464 So. 2d 672 (Fla. 5th DCA 1985).
The order revoking appellant’s probation is affirmed. The sentence is hereby vacated and the cause is remanded to the trial court for resentencing.
AFFIRMED in part; REVERSED.
ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Davis v. State, 487 So. 2d 1104 (Fla. 5th DCA 1986)…guidelines sentence, the record [*1105] fails to show that Davis affirmatively elected to be sentenced under them for this offense. An affirmative election by the defendant is required to make the guidelines applicable in such a case. Ames v. State, 470 So. 2d 94 (Fla. 5th DCA 1985). Further, we cannot say that the trial court obviously would have imposed the maximum statutory penalty (as he did in this case) in any event. Compare Kaymore v. State, 482 So. 2d 581 (Fla. 5th DCA 1986). With regard to the seco…
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Little v. State, 561 So. 2d 442 (Fla. 5th DCA 1990)…ed in 1981. Two errors occurred in connection with his sentence for this crime. First, the record does not show Little affirmatively elected to be sentenced under the guidelines. See Randi v. State, 538 So. 2d 976 (Fla. 5th DCA 1989); Ames v. State, 470 So. 2d 94 (Fla. 5th DCA 1985). Accordingly, this sentence must be vacated and the cause remanded for resentencing. Second, the state conceded that Little should have been given credit on this sentence for all the prison time he served. That includes not onl…
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Shaw v. State, 63 So. 3d 898 (Fla. 5th DCA 2011)…aw was placed on probation before October 1, 1983, he was entitled to be sentenced under the guidelines upon revocation of his probation after October 1, 1983, provided that he affirmatively elect [*900] ed a guidelines sentence.1 See Ames v. State, 470 So. 2d 94, 95 (Fla. 5th DCA 1985) (explaining that when defendant is placed on probation prior to October 1, 1983, effective date of sentencing guidelines, and his probation is revoked after that date, defendant must affirmatively elect to be sentenced under…
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)
- Duggar v. State, 446 So. 2d 222 (Fla. 1st DCA 1984)
- Coye Elliott Boyett v. State, 452 So. 2d 958 (Fla. 2d DCA 1984)
- State v. Coye Elliott Boyett, 467 So. 2d 997 (Fla. 1985)
- Irving v. State, 464 So. 2d 672 (Fla. 5th DCA 1985)
- Smith v. State, 465 So. 2d 1372 (Fla. 2d DCA 1985)
- Sheraton BAL Harbour and INA/Aetna v. Ligia Cardoza, 458 So. 2d 347 (Fla. 1st DCA 1984)
- Mack v. State, 458 So. 2d 347 (Fla. 5th DCA 1984)