JOSEPH MONTI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant's failure to appear or violation of probation, standing alone, are not sufficient grounds for a court to depart from sentencing guidelines.
[1] A trial court may not depart from sentencing guidelines based upon a crime for which the defendant has not been convicted.
[2] A violation of probation, standing alone, does not justify a departure from sentencing guidelines beyond a one-cell increase.
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Join FLexlaw to unlock all legal intelligenceJoseph Monti was convicted of carrying a concealed weapon and sentenced to five years' incarceration, exceeding his recommended guideline sentence. Th…
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COBB, Chief Judge.
Joseph Monti appeals his sentence of five years’ incarceration resulting from his conviction for carrying a concealed weapon. Monti’s recommended guideline sentence was any nonstate prison sanction. The lower court elected to deviate from the recommended sentence to the statutory maximum of five years.
The trial court gave two reasons for departure. The first was that Monti failed to appear at his PSI interviews and at sentencing. Although this court has not addressed the issue, both the First and the Second Districts have held that a failure to appear, standing alone, is not a sufficient basis for departure. See Parker v. State, 465 So. 2d 1361 (Fla. 1st DCA 1985); Williams v. State, 471 So. 2d 201 (Fla. 2d DCA 1985). No rationale for this holding has been given by the First and Second Districts. This court agrees on the basis that failure to appear amounts to criminal contempt. Here, a conviction was not obtained for criminal contempt. It is impermissible to deviate from the guidelines based upon a crime for which the defendant has not been convicted. See Florida Rule of Criminal Procedure 3.701(d)(ll). If a conviction had been obtained, it still would not be a proper basis for departure, as it would then properly be included in the score sheet. See Hendrix v. State, 475 So. 2d 1218 (Fla. 1985). Thus, the trial court was incorrect in using Monti’s failure to appear as a basis for departing from the guideline sentence.
Additionally, the trial court was incorrect . in using Monti’s violation of probation as a basis for departure. Although a violation of probation may justify a one-cell increase under the sentencing guidelines (see Rule 3.701(d)(14)), it will not substantiate a greater increase unless supported by additional valid reasons for departure. See Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985). As neither reason for deviation is valid, this case is remanded with instructions to the lower court to sentence Monti within the guidelines.
REVERSED and REMANDED.
UPCHURCH and SHARP, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Williams v. State, 500 So. 2d 501 (Fla. 1986)…BARKETT, Justice. We have for review Williams v. State, 471 So. 2d 201 (Fla. 2d DCA 1985), because of direct and express conflict with Monti v. State, 480 So. 2d 223 (Fla. 5th DCA 1985). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We quash the decision below and remand for resentencing. Barry Allan Williams was charged with burglary of a dwelling and two counts of grand theft. The crimes were committed…
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State v. Pentaude, 500 So. 2d 526 (Fla. 1987)…propriate sentence within the statutory limit.” 478 So. 2d at 1149. See Taylor v. State, 485 So. 2d 900 (Fla. 4th DCA 1986), citing Williams v. State, 480 So. 2d 679 (Fla. 1st DCA 1985) (certifying to this Court identical questions); Monti v. State, 480 So. 2d 223 (Fla. 5th DCA 1985); Gordon v. State, 483 So. 2d 22 (Fla. 2d DCA 1985). Rule 3.701 d.14 merely recognizes that sentencing following revocation of probation is a serious matter, and so allows for a one cell departure without the necessity of any oth…
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Bernhine W. Young v. State, 519 So. 2d 719 (Fla. 5th DCA 1988)….Pentaude v. State ] 478 So. 2d [1147] at 1149 [Fla. 1st DCA 1985]. See Taylor v. State, 485 So. 2d 900 (Fla. 4th DCA 1986), citing Williams v. State, 480 So. 2d 679 (Fla. 1st DCA 1985) (certifying to this Court identical questions); Monti v. State, 480 So. 2d 223 (Fla. 5th DCA 1985); Gordon v. State, 483 So. 2d 22 (Fla. 2d DCA 1985). Rule 3.701 d.14 merely recognizes that sentencing following revocation of probation is a serious matter, and so allows for a one cell departure without the necessity of any oth…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985)
- Williams v. State, 471 So. 2d 201 (Fla. 2d DCA 1985)
- Parker v. State, 465 So. 2d 1361 (Fla. 1st DCA 1985)