CHRISTOPHER PARSONS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Christopher Parsons appeals his two-year sentence for violating probation. While the court affirms the finding of probation violation, it reverses and remands for resentencing because the trial court failed to establish whether the guidelines sentence was imposed with the defendant's affirmative selection, which is required for offenses committed before October 1, 1983.
For offenses occurring before October 1, 1983, the sentencing guidelines may only be applied if the defendant affirmatively selects to be sentenced under them. Silence or mere discussion of a scoresheet does not constitute affirmative selection. The case must be remanded for resentencing to establish whether the defendant affirmatively chooses guidelines sentencing or sentencing under pre-guidelines law, with the record clearly reflecting the method used to determine parole eligibility.
[1] A defendant may only be sentenced under the sentencing guidelines for an offense committed prior to October 1, 1983, if the defendant affirmatively selects to be sentence…
[2] A defendant's silence or discussion of a scoresheet in their presence does not constitute a clear and unequivocal selection to be sentenced under the guidelines.
Previewing 2 of 5 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“Where an offense occurs prior to October 1, 1983, the sentencing guidelines may only be applied if the defendant affirmatively selects to be sentenced under them.”
Establishes the key legal rule that guidelines sentencing for pre-October 1, 1983 offenses requires affirmative defendant selection.
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Join FLexlaw to unlock all legal intelligenceParsons was charged with obtaining property by worthless check in violation of Florida law. He pleaded guilty and was placed on probation for one year…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
Appellant, Christopher Parsons, appeals from a two year sentence imposed upon him for violating probation. Although we find no merit to appellant’s contention that the trial court erred in finding him guilty of violating probation, we must remand for resentencing.
Appellant was charged by information with having obtained property in return for a worthless check in violation of section 832.05, Florida Statutes (1979). After pleading guilty to the charge, appellant was placed on probation for a period of one year. On March 16, 1983, a warrant was issued charging appellant with violating the terms of his probation, and on May 24, 1984, he was found guilty of violating probation. On August 13, 1984, appellant was adjudicated guilty and sentenced to serve two years in state prison. This appeal timely followed.
The underlying offense in this case was committed on June 8, 1981, and the appellant was originally placed on probation in 1982. The record reflects that the trial court ordered a guidelines scoresheet to be prepared, but a scoresheet was not mentioned at sentencing and is not a part of the record on appeal. We, therefore, are not able to determine whether the court imposed a guidelines sentence. If the court did impose a guidelines sentence, it erred.
Where an offense occurs prior to October 1, 1983, the sentencing guidelines may only be applied if the defendant affirmatively selects to be sentenced under them. In Re Rules of Criminal Procedure, 439 So. 2d 848 (Fla.1983). Although appellant did not object to the imposition of a sentence under the guidelines, he did not affirmatively select to be sentenced under them. Neither appellant’s silence, nor the discussion in his presence of a scoresheet presented pursuant to the rule, can constitute a clear and unequivocal selection to be sentenced under the guidelines. Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985); Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984).
Because appellant’s right to be paroled depends upon whether he was sentenced under the guidelines, we must remand for resentencing. At resentencing, the appellant may affirmatively select to be sentenced under the guidelines. If appellant does not affirmatively select, the court must resentence him according to the law in effect prior to the adoption of the guidelines. In either event, the record should reflect the manner in which the appellant is sentenced so that his eligibility for parole may be determined.
We affirm the judgment in all other respects.
Reversed and remanded for resentencing.
OTT, A.C.J., and SCHOONOVER and HALL, 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)…court’s contemplated sentence was “inside the guidelines” a sufficiently affirmative statement to meet the requirements of Rule 3.701, Florida Rules of Criminal Procedure. See Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984); cf. Parsons v. State, 470 So. 2d 834 (Fla. 2d DCA 1985). While it is true that counsel can make an election of guideline’s sentencing which is binding on the defendant, counsel’s action must be based on permission received from the defendant. Moore v. State, 455 So. 2d 535 (Fla. 1st DC…
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Ira Maxwell v. State, 489 So. 2d 1218 (Fla. 2d DCA 1986)…ng the guidelines” may not have constituted a categorical objection to imposition of a sentence under the guidelines, failure to specifically object to guidelines sentencing does not constitute a clear and unequivocal election. See Parsons v. State, 470 So. 2d 834 (Fla. 2d DCA 1985); Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985); Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984). We, therefore, reverse and remand for resentencing. At resentencing, the appellant may affirmatively elect to be sentenc…
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Santini v. State, 479 So. 2d 317 (Fla. 2d DCA 1985)…er the guidelines. Neither appellant’s silence nor discussion in his presence of a score-sheet prepared and presented pursuant to the rule can constitute an affirmative selection. Wright v. State, 478 So. 2d 524 (Fla. 2d DCA 1985); Parsons v. State, 470 So. 2d 834 (Fla. 2d DCA 1985). In the absence of such selection, the guidelines may not be applied. Wright. On this record, it is not clear whether appellant would have received the same sentences had the trial judge recognized that the guidelines were not to…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities 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)
- Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985)