MARK L. WEAVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant's arrest, for which he had not been convicted, could not serve as a basis for departing from sentencing guidelines. The court also held that defense counsel's participation in a discussion about guidelines sentencing constituted more than mere acquiescence.
[1] A defendant may be sentenced pursuant to the sentencing guidelines when defense counsel actively participates in discussions and requests a sentence within the guidelines…
[2] A trial court errs in departing from sentencing guidelines when the sole stated reason for departure is an arrest for which the defendant has not yet been convicted.
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Join FLexlaw to unlock all legal intelligenceDefendant appealed his sentence imposed pursuant to sentencing guidelines after a revocation of probation. The trial court departed from the guideline…
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LEHAN, Judge.
Defendant appeals his sentence imposed pursuant to the sentencing guidelines. We reverse.
Defendant first contends that his sentencing was in error because he did not elect to be sentenced pursuant to the guidelines. We disagree. The record shows that his attorney participated in open court in a discussion with the trial judge and the assistant state attorney concerning what the recommended guidelines sentence was. Defendant’s attorney asked the trial judge to sentence defendant in the low end of the guidelines range. Under these circumstances we conclude that there was more than mere acquiescence by defendant to being sentenced under the guidelines. Defense counsel participated in the guidelines sentencing. See Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984); Moore v. State, 455 So. 2d 535 (Fla. 1st DCA 1984).
Defendant’s second contention was that the trial court erred in departing from the sentencing guidelines.
We agree. Defendant’s sentencing occurred after a revocation of probation.
The trial court’s stated reason for departure from the guidelines was defendant’s arrest which had been the basis for the probation revocation but for which defendant had not at that time been convicted.
Under Florida Rule of Criminal Procedure 3.701(d)(14), a sentence imposed after revocation of probation can be raised one cell without being considered a departure from the guidelines. Here the trial court departed by imposing a sentence two cells higher than the recommended sentence. The court’s reason for departure was invalid, however, because an arrest for which defendant has not been convicted cannot serve as a basis for departing from the guidelines. See Fla.R. Crim.P. 3.701(d)(ll); Young v. State, 455 So. 2d 551 (Fla. 1st DCA 1984). Accordingly, the case is reversed and remanded for resentencing. On remand, the trial court may impose a sentence one cell higher than the recommended guidelines sentence, based on the probation revocation, but may not otherwise depart from the guidelines.
OTT, A.C.J., and HALL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ryan v. State, 482 So. 2d 558 (Fla. 2d DCA 1986)…e recommended sentence and objects to its severity. See Santini v. State, 479 So. 2d 317 (Fla.2d DCA 1985); Jackson v. State, 478 So. 2d 515 (Fla.2d DCA 1985); Blackwelder v. State, 476 So. 2d 280 (Fla.2d DCA 1985). The state cites Weaver v. State, 475 So. 2d 1365 (Fla.2d DCA 1985), as a case in which participation by defense counsel in a discussion about the recommended guidelines sentence was held to constitute an affirmative selection of guideline sentencing. However, in Weaver the defense attorney went be…
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Rios v. State, 483 So. 2d 39 (Fla. 2d DCA 1986)…counsel's discussion of the scoresheet with the trial court did not constitute an affirmative election of guidelines sentencing. In the case at hand, there was not even discussion between the trial judge and counsel in that regard. Weaver v. State, 475 So. 2d 1365 (Fla. 2d DCA 1985), which found an election of guidelines sentencing without there having been specific words by defendant or defense counsel making such an election, is distinguishable because in that case defense counsel requested that the defenda…
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Royer v. State, 488 So. 2d 649 (Fla. 5th DCA 1986)…the guidelines shall not include factors relating to prior arrests without conviction or factors relating to the instant offenses for which convictions have not been obtained.2 See Brown v. State, 480 So. 2d 225 (Fla. 5th DCA 1985); Weaver v. State, 475 So. 2d 1365 (Fla. 2d DCA 1985); Fletcher v. State, 457 So. 2d 570 (Fla. 5th DCA 1984). The departure sentence is vacated and the cause remanded for resentencing in accordance with the sentencing guidelines, SENTENCE VACATED; CAUSE REMANDED FOR RESENTENCING.…
Authorities Cited
- Young v. State, 455 So. 2d 551 (Fla. 1st DCA 1984)
- Moore v. State, 455 So. 2d 535 (Fla. 1st DCA 1984)
- Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984)