GARY VINCENT WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1985-12-19
No. BD-97
BOOTH, C.J., and NIMMONS, J., concur.
480 So. 2d 679 Florida District Court of Appeal, First District (1985) Negative Treatment
Cited by 10 cases

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Holding

The court held that the single ground stated for departure from sentencing guidelines was sufficient to support the sentence imposed upon revocation of probation.


Headnotes

[1] A single ground of willful and obstinate failure to take advantage of job opportunities and instructions at a restitution center can be sufficient to support a departure…

[2] A defendant found guilty of violating probation may be sentenced to more than the next higher guidelines cell if written reasons for departure, other than the violation i…

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Facts & Procedural History

Gary Williams appealed his sentence after probation was revoked due to multiple violations, including failing to pay supervision costs, possessing can…

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Opinion of the Court
ZEHMER, Judge.

ZEHMER, Judge.

Gary Williams appeals the sentence imposed upon revocation of his probation. He was initially charged in two counts with burglary and grand theft. The court withheld adjudication, placed Williams on probation, and imposed conditions of probation which involved his participation in the program at a probation and restitution center. On June 4,1984, an affidavit for violation of probation was filed alleging ten separate charges, several of which related to his probation program.1 Following a hearing held October 18, 1984, the trial judge found him guilty of all charges, revoked appellant’s probation, entered a judgment of guilty on both counts, and sentenced appellant to serve two three-year concurrent prison terms.

Defendant’s sentencing guidelines score-sheet had a total of thirty-four points, which falls in the first cell indicating “any nonstate prison sanction.” Under rule 3.701(d)(14), Florida Rules of Criminal Procedure, defendant could be sentenced to the next higher cell, i.e., “community control or 12-30 months incarceration,” without the court having to set forth clear and convincing reasons. The sentence actually imposed fell within the second cell above the sentencing guidelines scoresheet, i.e., “three years incarceration.” The trial judge’s reasons for departure appear relatively minor until one examines the several charges of probation violation. The written ground justifying departure from the guidelines reads:

The defendant willfully and obstinately failed to take advantage of the job opportunities and instructions from the Restitution Center in which he was housed at the time of these violations.

We hold this single ground sufficient to support departure and affirm the sentence imposed. We certify the following questions of great public importance:

1. WHETHER, UNDER RULE 8.701(d)(14), A PERSON FOUND GUILTY OF VIOLATING PROBATION MAY NOT BE SENTENCED TO MORE THAN THE NEXT-HIGHER GUIDELINES CELL UNLESS WRITTEN REASONS OTHER THAN THE VIOLATION OF PROBATION ARE GIVEN FOR DEPARTURE FROM THE GUIDELINES? 2. WHETHER THE REASON STATED BY THE TRIAL COURT, IN VIEW OF THE NUMEROUS VIOLATIONS OF PROBATION ADMITTED BY THE APPELLANT, CONSTITUTES SUFFICIENT CLEAR AND CONVINCING REASON TO SUPPORT DEPARTURE FROM THE RECOMMENDED GUIDELINES?

AFFIRMED.

BOOTH, C.J., and NIMMONS, J., concur. .Williams was charged in the affidavit with violating probation as follows:

1. By failing to pay the State of Florida the amount of twenty dollars ($20) per month toward the cost of supervision for the months of March 1984 and April 1984.

2. By violating the law, in that on approximately March 27, 1984, March 31, 1984, and April 2, 1984, the probationer was in possession and used cannabis.

3. By failing to work diligently at a lawful occupation as directed by probation officer subsequent to January 30, 1984.

4. By failing to comply with instructions of Correctional Probation Officer Mr. John Dillard, in that on February 20, 1984 and again on February 22, 1984, the probationer was instructed to contact Volunteer Pensacola to set up a work schedule for his community service and this he failed to do.

5. By failing to comply with instructions of a probation officer and rules of the Pensacola Probation & Restitution Center, in that on March 16, 1984, the probationer failed to proceed to his authorized destination and was absent without leave.

6. By failing to comply with instructions of probation officer and rules of the Pensacola Probation & Restitution Center, in that on March 17, 1984, the probationer failed to pro ceed to his authorized destination and was absent without leave.

7. By failing to comply with instructions of probation officer and rules of the Pensacola Probation & Restitution Center, in that on March 20, 1984, the probationer failed to proceed to his authorized destination and was absent without leave.

8. By failing to pay $376 court costs as directed by supervisor, in that subsequent to January 4, 1984, the probationer has made no payments.

9. By failing to perform ten weeks of community service as directed by supervisor, in that subsequent to January 4, 1984, the probationer has done no community service.

10.By failing to successfully complete the program at the Pensacola Probation & Restitution Center, in that on April 3, 1984, the probationer was unsuccessfully terminated from the Pensacola Probation & Restitution Center without completing the program as a result of his failing to work, failing to pay financial obligations, violating the law and failing to comply with instructions of the Restitution Center staff.


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Citator

Cited By

  • State v. Pentaude, 500 So. 2d 526 (Fla. 1987)
    …iciently egregious, he is entitled to depart from the presumptive guidelines range and impose an appropriate 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 pro…
  • Bernhine W. Young v. State, 519 So. 2d 719 (Fla. 5th DCA 1988)
    …the presumptive guidelines range and impose an appropriate sentence within the statutory limit.’ [.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 pro…
  • Tuthill v. State, 518 So. 2d 1300 (Fla. 3d DCA 1987)
    …iciently egregious, he is entitled to depart from the presumptive guidelines range and impose an appropriate 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 pro…

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