NATHANIEL BIGBEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Nathaniel Bigbee appeals his sentences for probation violations on underlying offenses committed before October 1, 1983. The court reverses and remands for resentencing because the trial court applied sentencing guidelines without obtaining Bigbee's affirmative election to be sentenced under the guidelines, which was required for pre-October 1, 1983 offenses.
The trial court erred in sentencing Bigbee under the guidelines because the record fails to demonstrate that Bigbee affirmatively selected to be sentenced under the guidelines. For offenses committed prior to October 1, 1983, sentencing guidelines may only be applied if a defendant affirmatively and unequivocally elects to be sentenced under them.
[1] Sentencing guidelines may only be applied to offenses committed prior to October 1, 1983, if the defendant affirmatively selects to be sentenced under them.
[2] An election to be sentenced under the guidelines must be clear and unequivocal.
Previewing 2 of 4 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 a defendant affirmatively selects to be sentenced under them.”
Establishes the core legal principle that pre-October 1, 1983 offenses require affirmative defendant election to apply guidelines
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceBigbee was serving concurrent probation terms for burglary and grand theft, both committed prior to October 1, 1983. In March 1984, affidavits allegin…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Affirmative Election For Sentencing cases and more on FLexlaw
PER CURIAM.
The appellant, Nathaniel Bigbee, appeals from the judgments and sentences entered against him. Appellant contends that the trial court erred in sentencing him under the sentencing guidelines, Florida Rules of Criminal Procedure 3.701. We agree.
On March 5, 1984, affidavits of violation of probation were filed alleging that appellant had violated four conditions of his probation. The appellant had been serving a five year term of probation for burglary, a violation of section 810.02, Florida Statutes (1981), and a concurrent term of three years probation for grand theft, a violation of section 812.014(2)(b), Florida Statutes (1981). Both offenses were committed pri-or to October 1,1983. The appellant admitted the violations of probation and, on October 19, 1984, was sentenced to consecutive terms of five years in prison on each of the underlying offenses. At the sentencing hearing, the court was asked why it was departing from the guidelines. The court announced its reasons and subsequently set them forth in writing.
Where an offense occurs prior to October 1, 1983, the sentencing guidelines may only be applied if a defendant affirmatively selects to be sentenced under them. In Re Rule of Criminal Procedure, 439 So. 2d 848 (Fla.1983). Such an election must be clear and unequivocal. Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985); Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984). The record in this case fails to demonstrate that the appellant affirmatively selected to be sentenced under the guidelines.
The state argues that the record does not indicate that the sentences are, in fact, guideline sentences. It points to the omission of a scoresheet from the appellant’s directions to the clerk as a significant means of distinguishing guidelines sentences, which do not afford the possibility of parole, from sentences imposed prior to the adoption of the guidelines, which do afford parole. We disagree with the state’s argument. Although the record does not contain a guidelines scoresheet, it contains numerous indications of the trial court’s intent to sentence the appellant under the guidelines. At the hearing on appellant’s revocation of probation, the court stated that the guidelines recommended sentence for appellant’s offenses was eight years. When asked at sentencing why it was departing from the sentencing guidelines, the court stated its reasons. The court, moreover, set forth its reasons for departure in writing and indicated on the judgment and sentence forms that the sentence was outside of the guidelines.
Because the record does not reflect a clear and unequivocal election by the appellant to be sentenced under the guidelines, we reverse and remand for resentencing. At resentencing the appellant may affirmatively select to be sentenced under the guidelines. If he does not, the court must resentence him according to the law in effect prior to the adoption of the guidelines. We affirm the judgments in all other respects.
Reversed and remanded for resentencing.
DANAHY, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Jackson v. State, 478 So. 2d 515 (Fla. 2d DCA 1985)…. Despite the absence of a scoresheet in the record, the transcript of the sentencing hearing when combined with the lower court’s written reasons for departure indicate that it measured Jackson’s sentence by guidelines standards. Bigbee v. State, 476 So. 2d 320 (Fla. 2d DCA 1985). Section 921.001(4)(a), Florida Statutes (1983), however, prohibits the application of sentencing guidelines to crimes occurring prior to October 1, 1983, absent an affirmative selection by the defendant to be sentenced in that ma…
-
Riggins v. State, 495 So. 2d 227 (Fla. 2d DCA 1986)…e applied to appellant’s sentence if he affirmatively selected to be sentenced under them. In Re Rules of Criminal Procedure, 439 So. 2d 848 (Fla.1983). An election to be sentenced under the guidelines must be clear and unequivocal. Bigbee v. State, 476 So. 2d 320 (Fla. 2d DCA 1985); Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985); Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984). As the record fails to demonstrate that appellant made the requisite election, we must reverse and remand for resentencing. A…
-
Davis v. State, 496 So. 2d 944 (Fla. 2d DCA 1986)…e applied to appellant’s sentence if he affirmatively selected to be sentenced under them. In Re Rules of Criminal Procedure, 439 So. 2d 848 (Fla.1983). An election to be sentenced under the guidelines must be clear and unequivocal. Bigbee v. State, 476 So. 2d 320 (Fla. 2d DCA 1985); Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985); Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984). As the record fails to demonstrate that appellant made the requisite election, we must reverse and remand for resentencing.…
Authorities 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)