KENNETH CURTIS WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Curtis Williams appeals his sentence imposed after violating community control by committing burglary. The trial court imposed a three-year sentence, one guideline cell above the recommended 12-30 months range. The court affirms, holding that Rule 3.701(d)(14) permits such an increase for community control revocation just as it does for probation revocation, and no written reasons for departure are required.
A trial court may impose a sentence one cell above the guideline range upon revocation of community control without written reasons for departure. Rule 3.701(d)(14) must be read to include community control revocation even though the rule's second sentence explicitly mentions only probation revocation, as it would be illogical to permit such increases for probation but not for the more severe sanction of community control revocation.
[1] A sentence imposed after revocation of community control may be increased to the next higher guidelines cell without requiring a reason for departure.
[2] Rule 3.701(d)(14), Florida Rules of Criminal Procedure, authorizing an increase in sentence upon revocation of probation, should be read in pari materia with the provisio…
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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.”
The governing rule that permits sentence increases upon revocation, the precise language that the defendant contended did not apply to community control revocation
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Join FLexlaw to unlock all legal intelligenceWilliams was placed on community control (itself imposed due to a prior probation violation) and subsequently violated it by committing burglary. The …
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LETTS, Judge.
A defendant who was placed on community control violated it by committing burglary and the trial court meted out a term of imprisonment one cell beyond the recommended range. He appeals, but we affirm.
The recommended guideline sentence for the defendant was 12 to 30 months incarceration; Rule 3.988(e), Florida Rules of Criminal Procedure. However, pursuant to recommendations of the probation officer and the state, the court went beyond the recommended cell to the next higher cell and imposed a sentence of three years imprisonment.
According to the defense, this increase was improper under Rule 3.701(d)(14), Florida Rules of Criminal Procedure which states:
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.]
As the defendant points out, the above wording appears to permit an increase of one cell beyond the guidelines range when probation is revoked but says nothing about such an increase when community control is revoked. However, reading the paragraph as a whole, while we agree the choice of language is poor, we are confident that it must have been intended that revocation of community control be included. It simply makes no sense to be allowed to increase the sentence if probation is revoked but not be allowed to do the same if community control is violated, especially since the latter is a more severe sanction that the former.1 Therefore, we believe the first sentence of the rule above quoted must be read in pari materia with the second.
The defendant also argues that written reasons were not given for departure as required by Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA Mar. 27, 1985), approved, State v. Boynton, 478 So. 2d 351 (Fla.1985). However, we hold that the dictates of Boynton are not applicable here because Rule 3.701(d)(14) specifically authorizes the increase without the necessity of “a reason for departure.”
AFFIRMED.
BOARDMAN, EDWARD F., Associate Judge (Retired), concurs.
ANSTEAD, J., concurs specially with opinion.
. It should be pointed out that how the defendant came to be under community control was because of a violation of probation!
ANSTEAD, Judge,
concurring specially.
I, too, find no error in the trial court’s action, but do so on the basis that a violation of community control is a clear and convincing reason to deviate from the guidelines.
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Cited By
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Brown v. State, 488 So. 2d 641 (Fla. 2d DCA 1986)…the trial judge to impose a sentence within the next higher cell of the guidelines without giving additional clear and convincing reasons. Fla.R.Crim.P. 3.701(d)(14). Likewise, this is proper for a violation of community control. Williams v. State, 479 So. 2d 861 (Fla. 4th DCA 1985). However, where, as here, the sentence imposed is in excess of the next higher cell, a departure must be supported by a clear and convincing reason other than a single violation of community control. See Carlisle v. State, 485 So…
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Delee v. State, 816 So. 2d 677 (Fla. 3d DCA 2002)…granted, and defendant’s sentence was mitigated to forty months. Delee argues that his failure to file one monthly report was not a substantial violation of probation. We disagree. Probation is the mildest form of punishment, see Williams v. State, 479 So. 2d 861, 862 (Fla. 4th DCA 1985), and is handed down as a matter of grace rather than right. Bernhardt v. State, 288 So. 2d 490, 494 (Fla.1974). Probation is usually granted on the basis that defendant is not likely to repeat his criminal conduct and can be…
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Pratt v. State, 520 So. 2d 640 (Fla. 1st DCA 1988)…PER CURIAM. AFFIRMED. See Williams v. State, 479 So. 2d 861 (Fla. 4th DCA 1985), rev. den., 488 So. 2d 69 (Fla.1986); Brown v. State, 488 So. 2d 641 (Fla. 2d DCA 1986). BOOTH, WIGGINTON and ZEHMER, JJ., concur.…
Authorities Cited
- Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985)
- State v. Boynton, 478 So. 2d 351 (Fla. 1985)