JERRY LEWIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant's sentence cannot be enhanced based on parole status, as this factor is already accounted for in the sentencing scoresheet.
Appellant was charged with robbery while on parole and sentenced under the guidelines. The trial judge enhanced his sentence by one cell due to his pa…
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SCHOONOVER, Judge.
Appellant, Jerry Lewis, seeks review of a judgment and sentence entered against him. We remand for resentencing.
While on parole for an earlier offense, appellant was charged on February 14, 1985, with robbery. He pled guilty to the charge and was sentenced under the guidelines. The point total on appellant’s score-sheet placed him in the recommended range of seven-to-nine-years imprisonment.
At sentencing, the trial judge enhanced appellant’s sentence by one cell and stated that he could do so without going outside the guidelines. He indicated on the score-sheet his reason for enhancement: “raised one category because of legal restraint (parole).” Appellant was sentenced to ten years in state prison, and this appeal timely followed.
Appellant correctly contends that the court erred in increasing appellant’s sentence, based upon his parole status, to the next higher cell. A defendant’s sentence may be increased to the next higher cell without reason for departure only where his probation or community control has been revoked. Fla.R.Crim.P. 3.701 d.14; see Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCS 1985). The rule does not include a similar provision for defendants who violate conditions of parole.
Seventeen points, furthermore, were added to the appellant’s scoresheet due to the fact that he was under legal constraint, i.e., on parole, at the time he committed the robbery. Because appellant’s legal status at the time of the offense had already been taken into account on his sentencing scoresheet, it cannot be considered as a valid justification for departure from the guideline-recommended sentence. See Ross v. State, 478 So. 2d 480 (Fla. 1st DCA 1985); see also, Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
We, accordingly, reverse and remand for resentencing within the guidelines.
Reversed and remanded.
DANAHY, A.C.J., and FRANK, J., concur.
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Meadows v. State, 498 So. 2d 1018 (Fla. 2d DCA 1986)…. Appellant was never on probation for the armed burglary and related charges. The unrelated case upon which defendant’s probation was revoked was properly entered into the guidelines scoresheet as an assessment for legal constraint. Lewis v. State, 483 So. 2d 749, 750 (Fla. 2d DCA 1986). Accordingly, we vacate appellant’s sentence in Case Nos. CF84-3836A1-XX and CF84-4488A1-XX and remand with instructions to resentence appellant within the guidelines unless valid written reasons for departure are set forth.…
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Williams v. State, 493 So. 2d 48 (Fla. 2d DCA 1986)…improper. Defendant received six points under legal constraint on his guideline scoresheet for his probationary status. Since that status was factored into the scoresheet, the trial court cannot use it as a reason for departure. See Lewis v. State, 483 So. 2d 749 (Fla. 2d DCA 1986). The trial judge referred to other convictions occurring after the commission of the primary offense for which the defendant was sentenced. Yet, the record does not disclose the date of these convictions. If they involved crimina…
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Pedrero v. State, 499 So. 2d 26 (Fla. 2d DCA 1986)…the trial court, we would still have to remand for resentencing. The trial court orally gave one reason for departing from the guidelines, i.e., the appellant had violated his parole. This reason is not a valid reason for departure. Lewis v. State, 483 So. 2d 749 (Fla. 2d DCA 1986). Additionally, the court did not enter a written statement setting forth clear and convincing reasons for departure. State v. Jackson, 478 So. 2d 1054 (Fla.1985). We, accordingly, reverse and remand for resentencing. Upon remand,…
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985)
- Ross v. State, 478 So. 2d 480 (Fla. 1st DCA 1985)