GEORGE DAVID LUDMIN; APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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George David Ludmin appeals his 5-year prison sentence imposed after probation violations, arguing the trial court failed to provide proper written reasons for departing from sentencing guidelines. The appellate court reverses and remands, holding that probation violation alone cannot justify departure beyond the single bracket provided by rule.
The trial court's method of providing reasons for departure was improper. Probation violation alone cannot justify departure beyond the one bracket contemplated by rule 3.701(d)(14). Any further departure must be supported by clear and convincing reasons other than solely the violation of probation.
[1] A trial court must provide a written statement of reasons for departing from recommended sentencing guidelines.
[2] A violation of probation, standing alone, is insufficient to justify a departure from recommended sentencing guidelines.
Previewing 2 of 3 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“the trial court stated that he considered 'a violation of probation sufficient aggravating circumstances to enhance any penalty that may be dictated by the sentencing guidelines scoresheet.'”
Establishes the trial court's sole stated reason for departure, which the appellate court found improper
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Join FLexlaw to unlock all legal intelligenceLudmin was arrested in April 1983 for burglary and dealing in stolen property. In October 1983, he elected to be sentenced under Florida sentencing gu…
The full statement of facts, procedural history, and disposition for this case are member content.
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JOANOS, Judge.
Appellant George David Ludmin seeks review of a 5-year sentence, which sentence constitutes a departure from the recommended guidelines sentence of any non-state prison sanction. The sole ground provided by the trial court for departure from guidelines sentencing was that Ludmin had violated his probation. Ludmin contends the trial court erred in failing to provide a written statement of reasons for departing from the guidelines. We reverse and remand for resentencing.
On April 17, 1983, Ludmin was arrested by an undercover investigator and charged with burglary and dealing in stolen property. On September 9,1983, he withdrew his previously entered plea of not guilty. Then on October 19, 1983, Ludmin, his attorney, and the circuit court judge all signed a document entitled “Election To Be Sentenced Under Florida Sentencing Guidelines.” Adjudication of guilt was withheld and Ludmin was placed on 5-years probation, subject to fourteen conditions of probation.
On February 7, 1984, Ludmin was charged with three technical violations of probation. He was adjudicated guilty on September 14, 1984, and sentenced to imprisonment for a term of five years, the maximum sentence under the applicable statute.1 Ludmin’s guidelines scoresheet shows a total of 35 points,2 with a recommended guidelines sentence of any non-state prison sanction. As reason for exceeding the recommended guidelines sentence, the trial court stated that he considered “a violation of probation sufficient aggravating circumstances to enhance any penalty that may be dictated by the sentencing guidelines scoresheet.” The trial court then directed the court reporter to transcribe his comments and make them a part of the written record in this case. This method of providing a written statement of reasons for departure from the sentencing guidelines was rejected by the Florida Supreme Court in State v. Jackson, 478 So. 2d 1054 (Fla.1985). Prior cases from this court are in accord. See: Edwins v. State, 475 So. 2d 1031 (Fla. 1st DCA 1985) and cases cited therein; and Donnell Stewart v. State, 480 So. 2d 1387 (Fla. 1st DCA 1985).
Prior to adoption of Florida Rule of Criminal Procedure 3.701(d)(14), the reason provided by the trial court for exceeding the guidelines range constituted a clear and convincing reason for departure. Now, however, the rule contemplates revocation of probation and provides a penalty for this particular offense. Consequently, if on remand the trial court determines that a departure is indicated beyond the one bracket provided in Rule 3.701(d)(14), the increase must be supported by clear and convincing reasons other than solely the violation of probation. Fla.R.Crim.P. 3.701(d)(11); Donnell Stewart v. State, 480 So. 2d 1387 (Fla. 1st DCA 1985); Pentaude v. State, 478 So. 2d 1147 (Fla. 1st DCA 1985); Eh-renshaft v. State, 478 So. 2d 842 (Fla. 1st DCA 1985); Riggins v. State, 477 So. 2d 663 (Fla. 5th DCA 1985); Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985). See also: Albritton v. State, 476 So. 2d 158 (Fla.1985), for a discussion of the elements to consider when making a determination to depart from the sentencing guidelines.
Reversed and remanded for resentencing.
BOOTH, C.J., and MILLS, J., concur. . § 812.014(2)(b), Fla.Stat., provides in relevant part that:
It is grand theft of the second degree and a felony of the third degree, punishable as provided in ss. 775.082, 775.083, and 775.084, if the property stolen is:
1. Valued at $100 or more but less than $20,000.
§ 775.082(3)(d), Fla.Stat., provides that a person convicted of a felony of the third degree may be punished "by a term of imprisonment not exceeding five years."
. The point total should be 34 rather than 35. The addition error is harmless, however, since it has no impact on the recommended guidelines sentence.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Donnell Stewart v. State, 480 So. 2d 1387 (Fla. 1st DCA 1986)…ion. Consequently, the trial court’s stated reason for sentencing outside the guidelines, i.e., solely because Stewart had violated his probation, does not constitute a proper ground for departure and requires reversal. George David Ludmin v. State, 480 So. 2d 1389 (Fla. 1st DCA 1985); Pentaude v. State, 478 So. 2d 1147 (Fla. 1st DCA 1985); Ehrenshaft v. State, 478 So. 2d 842 (Fla. 1st DCA 1985); Riggins v. State, 477 So. 2d 663 (Fla. 5th DCA 1985); Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985). See als…
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Self v. State, 487 So. 2d 391 (Fla. 1st DCA 1986)…ing reason for departure. As the result of rule 3.701(d)(14), a departure of more than one cell based solely on the fact that a defendant has violated his probation is improper. Stewart v. State, 480 So. 2d 1387 (Fla. 1st DCA 1986); Ludmin v. State, 480 So. 2d 1389 (Fla. 1st DCA 1986). Reversed and remanded for resentenc-ing. BOOTH, C.J., and SHIVERS, J., concur.…
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Carlisle v. State, 485 So. 2d 26 (Fla. 1st DCA 1986)…t higher cell, this court has held that any departure past the next higher cell must be supported by a clear and convincing reason other than solely the violation of probation. Stewart v. State, 480 So. 2d 1387, (Fla. 1st DCA 1986); Ludmin v. State, 480 So. 2d 1389, (Fla. 1st DCA 1986). For that reason, the sentence imposed must be reversed and remanded for resentencing. If the trial court determines on remand that this case is an appropriate one for departure beyond the next higher cell recommended by the gu…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985)
- Miranda v. Hance Constr. Co., 478 So. 2d 1147 (Fla. 1st DCA 1985)
- Jock Everett Riggins v. State, 477 So. 2d 663 (Fla. 5th DCA 1985)
- Enrico Ehrenshaft v. State, 478 So. 2d 842 (Fla. 1st DCA 1985)
- Edwins v. State, 475 So. 2d 1031 (Fla. 1st DCA 1985)
- Donnell Stewart v. State, 480 So. 2d 1387 (Fla. 1st DCA 1986)