CALVIN HALLBACK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Hallback appeals his sentence of seven-and-a-half years for dealing in stolen property, cocaine delivery, and probation violation. The court reverses and remands because the trial court failed to provide written reasons for departing from sentencing guidelines and improperly scored a burglary conviction.
The sentence must be reversed and remanded because the trial court failed to provide written reasons for departure as required by State v. Jackson. Additionally, the burglary should have been scored as an additional offense at conviction rather than prior record, which would reduce the recommended sentence to the fourth cell.
[1] A trial court's basis for departing from a recommended guideline sentence must be in writing.
[2] A burglary for which a defendant is on probation should be scored as an additional offense at conviction, not as prior record.
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Join FLexlaw to unlock all legal intelligence“Initially, this case must be remanded under State v. Jackson, 478 So. 2d 1054 (Fla.1985), as the basis for departure was not in writing.”
Establishes the requirement for written reasons for departure from sentencing guidelines
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Join FLexlaw to unlock all legal intelligenceHallback pleaded guilty to six counts of dealing in stolen property, one count of delivery of cocaine, and violation of probation. The sentencing guid…
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COBB, Chief Judge.
Hallback appeals his sentence of seven-and-a-half years’ incarceration resulting from his guilty plea to six counts of dealing in stolen property, one count of delivery of cocaine and violation of probation. His score sheet gave a recommended guideline sentence of four-and-a-half to five-and-a-half years’ incarceration, which was in the fifth cell. Included in the score sheet was the burglary for which he was on probation. This was scored as prior record. The trial court departed from the recommended sentence and sentenced Hallback to five years on each of the first seven offenses, to run concurrently, and thirty months to run consecutively for the burglary. This resulted in a sentence of seven-and-a-half years, which was in the eighth cell.
Initially, this case must be remanded under State v. Jackson, 478 So. 2d 1054 (Fla.1985), as the basis for departure was not in writing. On remand, it should be noted by the trial court that it was improper to score the burglary as prior record. Rather, it should have been scored as an additional offense at conviction.1 See Bradley v. State, 480 So. 2d 647 (Fla. 2d DCA 1985), corrected opinion on rehearing, 10 FLW 2612 (Fla. 2d DCA Nov. 22,1985). This will decrease the recommended sentence to the fourth cell. The lower court may wish to take advantage of Florida Rule of Criminal Procedure 3.701(d)(14), which provides for an increase of one cell for a probation violation without requiring a reason for departure.
REVERSED and REMANDED.
UPCHURCH and SHARP, JJ., concur. . Rule 3.701(d)(4) reads as follows:
Additional offenses at conviction: All other offenses for which the offender is convicted and which are pending before the court shall be scored as additional offenses based upon their degree and the number of counts of each. (Emphasis added.)
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Salsberry, 487 So. 2d 402 (Fla. 5th DCA 1986)…t scored the 1981 burglaries as the primary offenses at conviction, and the 1984 crimes as additional offenses at conviction. The state contends the 1981 offenses should be scored as prior offenses. We agree with the trial court. Hallback v. State, 479 So. 2d 865 (Fla. 5th DCA 1985); Bradley v. State, 480 So. 2d 647 (Fla. 2d DCA 1985). The approval by the supreme court of the commission’s proposed clarification of the committee notes to Florida Rule of Criminal Procedure 3.701(d)(5)1 has not been implemented…
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Rojas v. State, 506 So. 2d 1158 (Fla. 3d DCA 1987)…ear terms and one sixty-day term, to run concurrently. Rojas relies upon State v. Salsberry, 487 So. 2d 402 (Fla. 5th DCA 1986); Bradley v. State, 480 So. 2d 647 (Fla. 2d DCA 1985); cause dismissed, 486 So. 2d 595 (Fla.1986); and Hallback v. State, 479 So. 2d 865 (Fla. 5th DCA 1985), to support his contention that, because he had been placed under community control, the trial court erred in treating the robbery conviction as a prior conviction for purposes of the sentencing guidelines score sheet, rather tha…
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Vinson R. Peterson v. State, 523 So. 2d 168 (Fla. 1st DCA 1988)…d in 1985. At that time case law established that these crimes should be scored under the sentencing guidelines as additional offenses if the probation were subsequently revoked and sentence imposed with a new primary offense. See Hallback v. State, 479 So. 2d 865 (Fla. 5th DCA 1985). The sentencing guidelines were thereafter amended, and a revised committee note to Fla.R.Crim.P. 3.701(d)(5) now specifies that in such circumstances the offenses for which probation is revoked should be scored as prior record.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Bradley v. State, 480 So. 2d 647 (Fla. 2d DCA 1985)