DERRICK JOSEPH BOLDES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida Fifth District Court of Appeal reversed a sentencing departure where the trial court increased the defendant's sentence two brackets above the guideline range solely based on violation of community control conditions. The court held that under the amended Florida Rule of Criminal Procedure 3.701(d)(14), a violation of probation or community control permits an increase of only one bracket without requiring additional reasons for departure.
The court held that under the amended Florida Rule of Criminal Procedure 3.701(d)(14), effective July 1, 1984, a sentence imposed after revocation of probation or community control may be increased only to the next higher bracket without requiring a reason for departure. Any increase beyond one bracket requires clear and convincing reasons for departure beyond the mere violation of probation or community control.
[1] A trial court must provide a written statement of reasons for departing from recommended sentencing guidelines.
[2] A violation of probation, standing alone, is insufficient to constitute clear and convincing reasons for departing from recommended sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“Sentences imposed after revocation of probation or community control must be in accordance with the guidelines. The sentence imposed after revocation of probation may be included within the original cell (guidelines range) or may be increased to the next higher cell (guidelines range) without requiring a reason for departure.”
This quote establishes the amended rule 3.701(d)(14) that permits only a one-bracket increase for probation/community control violations without requiring departure reasons.
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Join FLexlaw to unlock all legal intelligenceDerrick Boldes was previously sentenced to two years in the Department of Corrections followed by two years of community control. He violated the comm…
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SHARP, Judge.
The trial court aggravated appellant’s guideline sentence upward more than one cell for the reason that appellant violated his community control conditions. Specifically, the judge stated at the sentencing:1
I am departing from the guidelines because I find that you were previously sentenced to two years Department of Corrections and two years Community Control. You violated the community control. To now reduce your sentence to probation just simply would make no sense to me.
Appellant contends this is error because the court was not authorized to increase his sentence more than the next cell higher than the recommended range for this reason. We agree.
This case is distinguishable from Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984), because Carter preceded the effective date of the Amendment to Florida Rule of Criminal Procedure 3.701(d)(14). That amendment provides:
Sentences imposed after revocation of probation or community control must be in accordance with the guidelines. The sentence imposed after revocation of probation may be included within the original cell (guidelines range) or may be increased to the next higher cell (guidelines range) without requiring a reason for departure. (Emphasis added).
This amendment became effective on July 1, 1984. Ch. 84-328, Laws of Florida; The Florida Bar: Amendment to the Rules of Criminal Procedure (3.701; 3.988 — Sentencing Guidelines), 451 So. 2d 824 (Fla.1984). It was therefore in effect on October 26, 1984, when the judge sentenced Derrick and Derrick should have the benefit of the amended rule. Compare Joyce v. State, 466 So. 2d 433 (Fla. 5th DCA 1985) (Amendment inapplicable to defendant sentenced before its effective date).
In this case, the sentencing judge gave as his sole reason for a “departure” sentence the fact that Derrick violated his community control conditions following his two year term of imprisonment, and that the guideline presumptive sentence of “probation” made “no sense.” However, the judge sentenced Derrick in this ease to forty-eight months, which was a sentence two brackets up on the hierarchy of the guidelines presumptive sentence ranges. He could have sentenced Derrick to thirty months, using the one bracket up range.
It appears to us that if violation of community control or probation is the sole reason for departing from a guidelines sentence, that the amended rule has mandated the result that the sentence may be increased one bracket. However, if the increase is beyond one bracket, then other clear and convincing reasons must be given for the departure. Fla.R.Crim.P. 3.701(d)(ll). An interpretation of the guidelines allowing unrestricted “departure” sentences solely for a violation of probation would, in effect, make the amended rule meaningless.2
Accordingly, we vacate the sentence and remand for resentencing.
SENTENCE VACATED; REMANDED.
COBB, C.J., and DAUKSCH, J., concur. . Burke v. State, 456 So. 2d 1245 (Fla. 5th DCA 1984); Fla.R.Crim.P. 3.701(d)(ll).
. Although Florida Rule of Criminal Procedure 3.701(d)(14) allows an increase one cell for a departure based for a revocation of probation, we find that community control is functionally the same as probation, as both are non-incarcer-ative dispositions. Ch. 948, Fla.Stat. (1983).
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Citator
Cited By (30 total)
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Dilar S. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985)…it is improper for the trial court to depart from the guidelines range beyond the one cell allowed by the 1984 amendment to Florida Rule of Criminal Procedure 3.701.2 See Ehrenshaft v. State, 478 So. 2d 842 (Fla. 1st DCA 1985), and Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985), holding that if violation of probation is the sole reason for departing from the guidelines sentence, the sentence may be increased no more than one cell without other clear and convincing reasons. Under the circumstances of thi…
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Adams v. State, 490 So. 2d 53 (Fla. 1986)…he required days of community service. . The fifth district has held that violating probation can be used to bump a sentence to the next single higher cell, but that further departure must be supported by another reason or reasons, Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985), and, also, that multiple probation violations can support a departure of more than one cell. Riggins v. State, 477 So. 2d 663 (Fla. 5th DCA 1985). . Five years, § 775.082(3)(d), Fla.Stat. (1985).…
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Jock Everett Riggins v. State, 477 So. 2d 663 (Fla. 5th DCA 1985)…g probation, or after it is revoked, to go up one sentencing range without giving “clear and convincing reasons” for a departure. If violation of probation was the sole reason for departing, the trial court could not depart further. Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985). However, in this case, the court intended to depart beyond the one cell allowance of Rule 3.701(d)(14), and it gave additional reasons: This was in effect appellant’s second violation of probation for this offense; and the reas…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- THE Fla. BAR: Amendment to Rules of Crim. Procedure (3.701, 451 So. 2d 824 (Fla. 1984)
- Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984)
- Burke v. State, 456 So. 2d 1245 (Fla. 5th DCA 1984)
- Joyce v. State, 466 So. 2d 433 (Fla. 5th DCA 1985)