BRENDA LLOYD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant must affirmatively elect to be sentenced under the guidelines, and the trial court erred in sentencing the defendant under the guidelines without such election.
Lloyd pleaded guilty to worthless check charges committed before the sentencing guidelines' effective date and was placed on probation. Her probation …
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THOMPSON, Judge.
Lloyd appeals a five-year sentence imposed after revocation of her probation. The crime for which she was sentenced was committed prior to the effective date of the sentencing guidelines, Fla.R.Crim.P. 3.701. She contends that the trial court erred in sentencing her under the guidelines since she was given no opportunity to elect or reject guidelines’ sentencing. We agree and reverse.
In November 1983 Lloyd pleaded guilty to charges of attempting to pass and passing worthless bank checks during July 1982. She was adjudged guilty, and placed on probation. Seven months later, after she pleaded guilty to violating her probation, the probation was revoked and she was sentenced to five years imprisonment.
No mention of the sentencing guidelines was made during the sentencing hearing until just prior to its conclusion. At that time, the trial judge stated that he was unsure whether the guidelines should apply, but that if they did, he was departing from them. The record does not reflect any affirmative selection on the part of Lloyd to be sentenced under the guidelines. Neither the fact that a guidelines score-sheet was prepared, nor the fact that Lloyd’s attorney failed to object to guidelines sentencing, vitiates the requirement that Lloyd affirmatively select guidelines sentencing. Finklea v. State, 470 So. 2d 90 (Fla. 1st DCA 1985).
Reversed and remanded for resentencing.
MILLS and SMITH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Austin v. State, 500 So. 2d 262 (Fla. 1st DCA 1986)…ey v. State, 483 So. 2d 60 (Fla. 1st DCA 1986). Neither 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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Jennings v. State, 492 So. 2d 805 (Fla. 1st DCA 1986)…1976 crimes. Absent such an affirmative election by a defendant to be sentenced under the guidelines for crimes occurring before the guidelines were adopted, such a guidelines sentence must be reversed and remanded for resen-tencing. Lloyd v. State, 473 So. 2d 765 (Fla. 1st DCA 1985); Finklea v. State, 470 So. 2d 90 (Fla. 1st DCA 1985). The defendant’s attorney’s participation in the guidelines sentence determination and the proceedings is not, of itself, sufficient to indicate affirmative selection. Finklea…
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Oceanus McCALL v. State, 481 So. 2d 1231 (Fla. 1st DCA 1985)…ses that the sentencing guidelines were discussed briefly, but that the defendant never made any comment in regard to them. Neither a discussion of the scoresheet nor the defendant’s silence can be considered an affirmative election. Lloyd v. State, 473 So. 2d 765 (Fla. 1st DCA 1985). Even where the defendant is sentenced as an habitual offender, as in the present case, and there is a departure from the guidelines, he must affirmatively elect to be sentenced under the guidelines. Holt v. State, 472 So. 2d 551…
Authorities Cited
- Finklea v. State, 470 So. 2d 90 (Fla. 1st DCA 1985)