MICHAEL EDWIN BARR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Edwin Barr appealed his sentences for burglary and grand theft convictions after violating probation. The court vacated his sentences and remanded for resentencing because the trial court failed to properly apply sentencing guidelines and imposed the legally impossible sanction of concurrent imprisonment and probation.
The court held that the trial court erred in its sentencing procedure because it failed to prepare and consider a sentencing guidelines scoresheet and created uncertainty about whether it departed from the presumptive sentence without proper findings. Additionally, concurrent terms of imprisonment and probation are legally impossible and constitute reversible error.
[1] A trial court errs in its sentencing procedure when it fails to prepare and consider a sentencing guidelines scoresheet.
[2] A trial court must determine the presumptive sentence before departing from sentencing guidelines and must state clear and convincing reasons for any departure in writing…
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Join FLexlaw to unlock all legal intelligence“We find a sufficient degree of uncertainty in the foregoing colloquy to warrant the belief that the trial court was not free of doubt as to the appellant's presumptive sentence.”
The court found the sentencing colloquy created ambiguity about whether the trial court properly determined the guideline sentence before any departure.
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Join FLexlaw to unlock all legal intelligenceBarr pleaded guilty to burglary and grand theft and was placed on probation. He subsequently committed additional acts of burglary and grand theft, pl…
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FRANK, Judge.
The appellant, Michael Edwin Barr, pleaded guilty to burglary and grand theft. He was placed on probation. Thereafter, he again committed acts of burglary and grand theft. After pleading guilty to the four offenses, he was adjudicated guilty, probation was revoked and a three year prison sentence was imposed for grand theft. He received probation for each of the other three convictions. All terms, including the prison term, were to run concurrently.
Although the appellant’s appointed counsel requested permission to withdraw from this matter pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), she did submit that a sentence in excess of the guidelines might arguably provide grounds for reversal. Our assessment of the record in this matter requires resentencing by the trial court.
At his sentencing hearing, the appellant affirmatively selected through his attorney to be sentenced pursuant to the guidelines. Subsequently, he objected to the sentences which were imposed. The following colloquy involving the trial court and the appellant’s trial counsel suggests the possibility that there was a departure from the presumptive sentence:
THE COURT: The guidelines show three years; is that right?
MR. WHITE: Yes, sir. THE COURT: Any further comments?
MR. WHITE: No, sir, just other than to relate that the defendant would affirmatively elect to be sentenced under the guidelines.
THE COURT: Well, excuse me. Go ahead. I am not. I am going to give him probation and three which you will object to, right?
We find a sufficient degree of uncertainty in the foregoing colloquy to warrant the belief that the trial court was not free of doubt as to the appellant’s presumptive sentence. Cf. Davis v. State, 461 So. 2d 1361 (Fla. 2d DCA 1985). No scoresheet is found in the record and it appears from the transcript of the sentencing hearing that the lower court did not consider a scoresheet before sentencing the defendant. We are unable to determine whether the appellant received a guidelines or a statutory sentence. If departure did occur, the trial court should have determined the presumptive sentence before departing from the guidelines, Doby v. State, 461 So. 2d 1360, (Pla. 2d DCA 1984), Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984), Gage v. State, 461 So. 2d 202 (Fla. 1st DCA 1984), and it should have expressed in writing the clear and convincing reasons essential to a valid departure. If on the other hand the trial court imposed a guidelines sentence, it should have prepared a scoresheet. Rule 3.701(d)(1) of the Florida Rules of Criminal Procedure. The trial court erred in its sentencing procedure.
Finally, the appellant received concurrent terms of imprisonment and probation. In Brudie v. State, 467 So. 2d 1113 (Fla. 2d DCA 1985), we held it was reversible error to impose concurrent terms of imprisonment and probation. One cannot be simultaneously sentenced to probation and incarceration because of the impossibility of complying with probation while in prison. Furthermore, the underlying concept of probation is rehabilitation, not punishment. ,
Therefore, we vacate the appellant’s sentences and remand for resentencing with directions that a sentencing guidelines scoresheet be prepared and considered by the trial court before the imposition of a sentence.
GRIMES, A.C.J., and OTT, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Holton v. State, 573 So. 2d 284 (Fla. 1990)…t a sentence be imposed based on a sentencing [*291] guidelines scoresheet that has been reviewed by the trial judge. See, e.g., Brooks v. State, 505 So. 2d 639 (Fla. 1st DCA 1987); Sanchez v. State, 480 So. 2d 704 (Fla. 3d DCA 1985); Barr v. State, 474 So. 2d 417 (Fla. 2d DCA 1985). Therefore, we vacate Holton’s sentences for sexual battery and arson and remand for resen-tencing after a guidelines scoresheet has been prepared and considered by the trial judge. Holton also claims that the state rather than t…
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Gardner v. State, 656 So. 2d 933 (Fla. 1st DCA 1995)…the noninearcerative portions). The reasons for this rule are the impossibility of complying with probation while in prison and the underlying concept of probation as rehabilitation, not punishment. Clemons, 629 So. 2d at 1068 (citing Barr v. State, 474 So. 2d 417 (Fla. 2d DCA 1985)). Here, the May 22, 1992 written sentencing orders merely provide that the probationary sentences imposed in Case Nos. 88-518, 88-1146 and 88-2026 are to be concurrent to each other and Case No. 88-2874, but the sentencing transc…
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Clemons v. State, 629 So. 2d 1067 (Fla. 2d DCA 1994)…ive a Tripp sentence. Nonetheless, a long line of cases from this court directly on point holds that it is reversible error to impose probation and incarceration concurrently. E.g., Nobles v. State, 605 So. 2d 996. (Fla. 2d DCA 1992); Barr v. State, 474 So. 2d 417 (Fla. 2d DCA 1985); Roy v. State, 207 So. 2d 52 (Fla. 2d DCA 1967), cert. dismissed, 211 So. 2d 554 (Fla.1968). The rationale in these cases stems from “the impossibility of complying with probation while in prison. Furthermore, the underlying conce…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Davis v. State, 461 So. 2d 1361 (Fla. 2d DCA 1985)
- Myrick v. State, 461 So. 2d 1359 (Fla. 2d DCA 1984)
- Doby v. State, 461 So. 2d 1360 (Fla. 2d DCA 1984)
- Gage v. State, 461 So. 2d 202 (Fla. 1st DCA 1984)
- Brudie v. State, 467 So. 2d 1113 (Fla. 2d DCA 1985)