ROBERT L. JACKSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Jackson appeals his conviction and sentence for burglary, cannabis delivery, and battery on a law enforcement officer. The court holds that the trial court erroneously applied sentencing guidelines to crimes committed before October 1, 1983, without Jackson's affirmative selection, requiring modification of those sentences on remand.
The trial court erred by considering and departing from sentencing guidelines without the defendant's affirmative selection for pre-October 1, 1983 crimes. The defendant's silence and counsel's discussion of the presumptive sentence do not constitute affirmative selection. The error is corrected by modifying the pre-October 1, 1983 sentences to reflect they are not guidelines sentences, thereby preserving any parole entitlement.
[1] Sentencing guidelines may not be applied to crimes committed before October 1, 1983, unless the defendant affirmatively selects to be sentenced under the guidelines.
[2] A defendant's silence or defense counsel's discussion of presumptive sentences does not constitute an affirmative selection to be sentenced under the guidelines.
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“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 manner.”
Establishes the statutory requirement for affirmative selection when applying guidelines to pre-October 1, 1983 crimes.
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Join FLexlaw to unlock all legal intelligenceJackson was convicted of burglary (January 1981) and delivery of cannabis (September 1982), and placed on probation. In July 1984, he violated probati…
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FRANK, Judge.
The appellant, Robert L. Jackson, was convicted of burglary and delivery of cannabis. The crimes were committed in January of 1981 and September of 1982, respectively. He was placed on probation. Subsequently, Jackson violated probation by battering a law enforcement officer. That offense occurred in July of 1984. As a result, Jackson’s probation was revoked and he was adjudicated guilty of all three crimes in September of 1984.
At the sentencing hearing defense counsel orally informed the lower court that the recommended sentence under the guidelines was twelve to thirty months of incarceration. Jackson remained silent as to his desire to be sentenced pursuant to the guidelines. Nevertheless, the lower court departed from the guidelines by imposing consecutive five-year terms of imprisonment for each of the three crimes. In order to justify the enhanced sentence, the lower court filed a written order providing clear and convincing reasons for departure.
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 manner. Here, Jackson did not affirmatively choose to be sentenced under the guidelines with respect to the pre-Octo-ber 1, 1983, crimes. His mere silence cannot be construed as an affirmative selection. Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984). Neither can the defense counsel’s discussion of the presumptive sentence with the trial court be considered an affirmative selection. See Blackwelder v. State, 476 So. 2d 280 (Fla. 2d DCA 1985).
In sum, with respect to the 1981 and 1982 crimes the lower court erred by considering and departing from the sentencing guidelines without Jackson’s affirmative selection. Jackson’s failure to object to the sentences did not waive the issue for appellate review. See State v. Rhoden, 448 So. 2d 1013 (Fla.1984). The trial court’s error, however, is not to be corrected by resentencing but by modifying the sentences imposed for the crimes committed prior to October 1, 1983, to reflect they are not guidelines sentences, Hart v. State, 464 So. 2d 592 (Fla. 2d DCA 1985), and thus, but only to that extent, preserving whatever entitlement Jackson may have to parole.
Accordingly, on remand, the lower court is instructed to modify the pre-October 1, 1983, sentences consistent with this opinion.
GRIMES, A.C.J., and OTT, J., concur.
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Ryan v. State, 482 So. 2d 558 (Fla. 2d DCA 1986)…tute an affirmative selection of guidelines sentencing by the defendant, even where defense counsel apprises the court of the 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 sent…
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Laurent Raymond Utsey v. State, 483 So. 2d 60 (Fla. 1st DCA 1986)…he recent case of Pentaude v. State, 478 So. 2d 1147 (Fla. 1st DCA 1985), this court held that there must be an “affirmative election” to be sentenced under the guidelines, clearly made on the record. The same result was reached in Jackson v. State, 478 So. 2d 515 (Fla. 2d DCA 1985), wherein the court held that “mere silence cannot be construed as an affirmative selection.” Further, as to the sentencing procedure, the trial judge used a guideline score-sheet prepared for the defendant on a Du-val County char…
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Mullens v. State, 483 So. 2d 92 (Fla. 2d DCA 1986)…d 848 (Fla.1983). Mere silence does not consititute affirmative selection. Kimsey v. State, 467 So. 2d 333 (Fla. 2d DCA 1985). Nor does a discussion of the presumptive sentence with the trial court constitute affirmative selection. Jackson v. State, 478 So. 2d 515 (Fla. 2d DCA 1985). Accordingly, we reverse appellant’s sentences for the 1982 offenses and remand for resentencing. As to the second point raised by appellant, we find that the trial court erred in relying on intentional violence inherent in seve…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Learnhart Rhoden, 448 So. 2d 1013 (Fla. 1984)
- Blackwelder v. State, 476 So. 2d 280 (Fla. 2d DCA 1985)
- Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984)
- Hardinghaus v. Enslen, 464 So. 2d 592 (Fla. 3d DCA 1985)
- Bigbee v. State, 476 So. 2d 320 (Fla. 2d DCA 1985)