MARGIE THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Margie Thomas appealed her five-year prison sentence imposed for violating probation by failing to take prescribed medication. The court held that under amended sentencing guidelines effective July 1, 1984, a probation violation could only authorize sentencing to the next higher guideline cell, not an unlimited departure sentence, and therefore vacated and remanded for resentencing.
A probation violation does not authorize an unlimited departure from sentencing guidelines. Under the amended guidelines effective July 1, 1984, a prior revocation of probation can only increase the recommended sentence to the next higher cell block. The five-year sentence imposed was unauthorized and must be vacated.
[1] A violation of probation, under the sentencing guidelines effective July 1, 1984, can increase the recommended sentence to the next higher guideline cell, but does not au…
[2] Sentencing guidelines in effect at the time of a defendant's election and sentencing are applicable.
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“effective July 1, 1984, the sentencing guidelines were amended to provide that the maximum effect of a prior revocation of probation was to increase the recommended sentence to the next higher cell (guideline range)”
Establishes the governing amendment that limited probation violation as a sentencing factor
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Join FLexlaw to unlock all legal intelligenceThomas was convicted of crimes and placed on probation with a condition to continue certain medication. On February 25, 1985, she was found guilty of …
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COWART, Judge.
The defendant was convicted of crimes and placed on probation with the condition that she continue certain medication. On February 25, 1985, the defendant was found guilty of violating her probation by failing to take medication on November 29, 1984. The defendant elected to be sentenced under the sentencing guidelines. The recommended guideline range was community control or 12-30 months incarceration. However, when she was sentenced on March 28, 1985, the trial judge departed from the recommended guideline sentence on the basis that she had violated her probation and sentenced defendant to 5 years confinement. This appeal was taken from the departure sentence.
The appellate public defender cites Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984), where this court held that a violation of probation was a sufficient reason for a sentence departing from the recommended guideline sentence. However, effective July 1, 1984, the sentencing guidelines were amended to provide that the maximum effect of a prior revocation of probation was to increase the recommended sentence to the next higher cell (guideline range). See The Florida Bar: Amendment to Rules, etc., 451 So. 2d 824 (Fla. 1984). The next higher cell applicable to defendant’s sentence recommends “3 yrs. incarceration (30 mos. — 3V2).” The guidelines in effect at the time of defendant’s election and sentencing were applicable. State v. Jackson, 478 So. 2d 1054 (Fla.1985); Cone v. State, 469 So. 2d 945 (Fla. 5th DCA 1985). Therefore, the effect of a probation violation as authorizing a departure sen tence under Carter had been superseded by the amendment to the rule providing for the increase by one cell block for a violation of probation. Therefore, the defendant’s sentence of 5 years was unauthorized in the absence of a proper departure and it is hereby vacated and the cause remanded for resentencing.
REVERSED AND REMANDED.
DAUKSCH and ORFINGER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Franklin v. State, 526 So. 2d 159 (Fla. 5th DCA 1988)…e, the guidelines are specifically made applicable to any sentence imposed after revocation of probation.12 The defendant’s sentence of fifteen years was clearly within the guidelines in effect at the time of his resentencing.13 See Thomas v. State, 482 So. 2d 404 (Fla. 5th DCA 1985), rev. denied, 491 So. 2d 281 (Fla.1986); Saavedra v. State, 478 So. 2d 479 (Fla. 4th DCA 1985); Wahl v. State, 474 So. 2d 328 (Fla. 2d DCA 1985); Cone v. State, 469 So. 2d 945 (Fla. 5th DCA 1985). In conclusion, we find that a d…
Authorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- THE Fla. BAR: Amendment to Rules of Crim. Procedure (3.701, 451 So. 2d 824 (Fla. 1984)
- Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984)
- Verdell Hill v. State, 469 So. 2d 945 (Fla. 5th DCA 1985)