SAMUEL H. WIGFALS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Samuel Wigfals appealed the trial court's revocation of his probation and resulting 15-year sentence for committing a second robbery while on probation. The court affirmed the probation revocation but vacated the sentence because the trial judge failed to provide written reasons for departing from Florida's sentencing guidelines, which recommended a maximum of 12-30 months incarceration.
The court affirmed the finding that Wigfals violated his probation but vacated his 15-year sentence because the trial judge failed to provide written reasons for departing from the sentencing guidelines. Under Florida Rule of Criminal Procedure 3.701(d)(14), a limited departure to the next higher cell of the guidelines range is allowed without requiring reasons, but a departure beyond that range requires a written statement of reasons.
[1] A trial court's order revoking probation will be affirmed if the defendant admitted to violating the terms of probation.
[2] A sentence exceeding the presumptive guidelines range for a probation violation requires written reasons for departure.
Previewing 2 of 5 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“Florida Rule of Criminal Procedure 3.701(d)(14) allows a limited departure to the next higher cell on the guidelines range for a violation of probation without requiring a reason for departure. Thus, the maximum sentence defendant could have received within the guidelines was community control or twelve to thirty months incarceration. His fifteen-year sentence clearly exceeds this range.”
Establishes that the trial judge exceeded the permissible sentencing guidelines and that the 15-year sentence was outside the allowable range.
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Join FLexlaw to unlock all legal intelligenceWigfals was sentenced in 1980 for robbery to four years in prison followed by two years' probation, commencing February 1, 1983. On June 21, 1984, he …
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SCHEB, Judge.
Defendant Samuel H. Wigfals appeals the trial court’s order revoking his probation. We affirm the revocation but vacate his sentence and remand for resentencing.
On September 8, 1980, the trial court adjudicated defendant guilty of robbery and sentenced him to four years in prison followed by two year’s probation. His probation for this offense commenced on February 1, 1983. On August 10,1984, he was charged with violating the terms of this probation by committing another robbery on June 21, 1984.
At the probation violation hearing defendant admitted that a jury had convicted him of the second robbery early in 1985. The trial judge found he had violated probation as a result of this conviction. The guidelines scoresheet indicated defendant received a total of 50 points for violating probation. The presumptive sentence for this offense was community control or twelve to thirty months incarceration, if the recommended sentence in the next higher cell of the guidelines range were used pursuant to Florida Rules of Criminal Procedure 3.701(d)(14) and 3.988(c).
The judge adjudicated defendant guilty of violating probation and sentenced him to fifteen year’s imprisonment consecutive to any other sentence with credit for time served. He did not provide written reasons for departure from the guidelines. However, he orally stated on the record that the defendant was on probation when he committed the second robbery for which he had received a thirty-five-year sentence. The judge said that since defendant continued to be a threat to the community, he would sentence him to the maxinium punishment provided by law.
Florida Rule of Criminal Procedure 3.701(d)(14) allows a limited departure to the next higher cell on the guidelines range for a violation of probation without requiring a reason for departure. Thus, the maximum sentence defendant could have received within the guidelines was community control or twelve to thirty months incarceration. His fifteen-year sentence clearly exceeds this range. Consequently, we must vacate defendant’s sentence because the trial court failed to provide written reasons for departure. State v. Jackson, 478 So. 2d 1054 (Fla.1985); Crews v. State, 477 So. 2d 1093 (Fla. 2d DCA 1985).
On remand, the court may sentence defendant within the guidelines range or depart from the guidelines. If the court again wishes to depart, it must provide a written statement identifying valid reasons for departure. Any party aggrieved by the new sentence may file a new appeal. The judgment is otherwise affirmed.
GRIMES, A.C.J., and HALL, J., concur.
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Citator
Cited By
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Irving v. State, 484 So. 2d 78 (Fla. 2d DCA 1986)…75 So. 2d 1218 (Fla.1985). The third of those reasons was proper only as a basis for a departure from the guidelines to the extent of one cell and was not a proper basis for the departure here. Fla.R.Crim.P. 3.701(d)(14). See also Wigfals v. State, 480 So. 2d 259 (Fla. 2d DCA 1986). It is true that defendant was charged with violating probation by engaging in several drug sales. However, the trial court considered that conduct as constituting one violation of probation. Also, this case involved the only time…
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Myrick v. State, 497 So. 2d 728 (Fla. 2d DCA 1986)…as well as on appellant's criminal history. Appellant’s violation of probation, however, is an invalid reason to enhance appellant’s sentence more than the one cell permitted by Florida Rule of Criminal Procedure' 3.701(d)(14). See Wigfals v. State, 480 So. 2d 259 (Fla. 2d DCA 1986). Furthermore, appellant’s criminal history included both valid and invalid reasons for departure. For instance, the juvenile offenses appellant committed more than three years prior to the commission of the primary offense, Weems…
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Lucious Stewart v. State, 486 So. 2d 83 (Fla. 2d DCA 1986)…uld have received within the guidelines was 12-30 months’ incarceration or community control. The trial court’s sentence of five years’ imprisonment for possession of a short-barreled rifle is a departure requiring written reasons. Wigfals v. State, 480 So. 2d 259 (Fla. 2d DCA 1986). The record does not contain written reasons for departure; therefore, appellant’s sentence must be reversed and remanded for resentencing. Id. Further, the trial court’s stated reason for departure, that appellant was not a cand…
Authorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Crews v. State, 477 So. 2d 1093 (Fla. 2d DCA 1985)
- Bowen v. Carnival Cruise Lines, Inc., 477 So. 2d 1093 (Fla. 3d DCA 1985)