MICHAEL T. FAIRCLOTH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant was improperly sentenced under the guidelines and that the trial court erred in retaining jurisdiction over the sentence for escape.
The defendant's probation was revoked, and the trial court sentenced him under the sentencing guidelines, retaining jurisdiction over one-third of the…
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SCHEB, Judge.
After revoking defendant Michael T. Faircloth’s probation, the trial court sentenced him to fifteen years imprisonment under the sentencing guidelines and retained jurisdiction over one-third of his sentence. Defendant raises two points on appeal. We find merit to both.
First, defendant correctly contends that the trial court improperly sentenced him under the guidelines because the crime underlying his probation was committed before October 1,1983, and he did not elect to be sentenced under the guidelines. § 921.001(4)(a), Fla.Stat. (1983); Blackwelder v. State, 476 So. 2d 280 (Fla. 2d DCA 1985).
Second, defendant also correctly points out that the court’s retention of jurisdiction over one-third of his sentence was improper. Section 947.16(3), Florida Statutes (1983), authorizes retention of jurisdiction for certain enumerated felonies. Since escape, the underlying crime in this case, is not listed under section 947.16(3), the trial court erred in retaining jurisdiction over defendant’s sentence.
Accordingly, we affirm defendant’s conviction and sentence, but construe his sentence as a non-guidelines sentence. The trial court obviously intended to impose the maximum statutory prison term; therefore, we need not remand for resentencing. Blackwelder at 281. We also strike the court’s retention of jurisdiction over that sentence.
GRIMES, A.C.J., and SCHOONOVER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Excilia Duque v. State, 526 So. 2d 1079 (Fla. 2d DCA 1988)…nd the appellant’s actions in committing the offense of solicitation did not involve the use of a firearm, deadly weapon, or intentional violence, the trial court erred in retaining jurisdiction over the appellant’s sentence. See Faircloth v. State, 479 So. 2d 779 (Fla.2d DCA 1985); Williams v. State, 374 So. 2d 1086 (Fla.2d DCA 1979); Robinson v. State, 368 So. 2d 638 (Fla.2d DCA 1979). We, accordingly, affirm the judgment and sentence of thirty years imprisonment, but strike the trial court’s retention of…
Authorities Cited
- Blackwelder v. State, 476 So. 2d 280 (Fla. 2d DCA 1985)