FRANK HOLLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Frank Holley pleaded guilty to burglary and grand theft and received a guideline-conforming probation sentence with conditions, but when he expressed concern about his inability to pay the required monetary obligations, the trial judge imposed a departure sentence of concurrent seven and five-year prison terms instead. The appellate court vacated the sentence and remanded for resentencing, finding that the defendant was not adequately informed of his options and was overwhelmed by the probation conditions rather than genuinely rejecting probation.
While a trial court may generally depart from recommended guideline sanctions when a defendant refuses to cooperate with probation or community control, the departure sentence was improper here because the defendant was not adequately prepared for or advised regarding the probation conditions and their alternatives, and appeared to react improvidently due to being overwhelmed rather than genuinely rejecting probation.
[1] A trial court may depart from a recommended guideline sentence when a defendant refuses to cooperate with non-state prison sanctions, provided the sanctions appear to be…
[2] A defendant's expressed inability to pay monetary conditions of probation may be grounds for a trial court to impose a departure sentence.
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Join FLexlaw to unlock all legal intelligence“Probation and community control by their nature do require the cooperation of the defendant who has the power to defeat the success of such rehabilitative programs. Accordingly, we decline to hold that when the sanctions are within a recommended guideline sentence and appear to be an appropriate sentencing disposition that a trial judge may not depart from the recommended sentence when defendant refuses to cooperate as to these forms of non-state prison sanction.”
Establishes the principle that trial courts may depart from guideline sentences when defendants refuse to cooperate with probation or community control.
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Join FLexlaw to unlock all legal intelligenceHolley, age 19, pleaded guilty to burglary of a dwelling and grand theft of a motor vehicle. The trial judge proposed a guideline-conforming sentence …
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[*855] COWART, Judge.
Appellant pled guilty to burglay of a dwelling (§ 810.02(3), Fla.Stat. (1983)) and grand theft of a motor vehicle (§ 812.014, Fla.Stat. (1983)). The recommended guideline sentence was any non-state prison sanction. The trial judge sought to impose a guideline conforming sentence of ten years probation with conditions of 270 days jail confinement, appellant obtaining his general education diploma, and appellant paying $15 for the crime compensation trust fund, $20 a month cost of probation supervision, $250 attorney’s fees, $150 restitution, and a $1,000 fine. Although the trial judge explained to appellant that he could make installment payments of the $1,000 fine over the ten year probationary period, appellant and his counsel indicated appellant did not feel he would be able to make the monetary payments required by the probation conditions. Appellant explained, “I been laid off. I don’t have no job. I can’t pay all that money.” Appellant’s protestations were taken to indicate that he was turning down the privilege of being placed on probation and, accordingly, the trial court imposed prison sentences of seven and five years concurrently. Appellant exclaimed, “You didn’t tell me nothing like that.”
The trial court justified the departure sentence on the basis that appellant did not want to be on probation and did not want to pay the fine or restitution.
Probation and community control by their nature do require the cooperation of the defendant who has the power to defeat the success of such rehabilitative programs. Accordingly, we decline to hold that when the sanctions are within a recommended guideline sentence and appear to be an appropriate sentencing disposition that a trial judge may not depart from the recommended sentence when defendant refuses to cooperate as to these forms of non-state prison sanction.
However, in this case, it appears to us from the record that the defendant, age 19, was not prepared for the conditions of probation and was overwhelmed by the amount of the money he was required to pay and by his own appraisal of his inability to make those payments and reacted improvidently with lack of advice as to the possible alternatives. Had the defendant not been so honest and had not expressed his view of his own financial inability and had accepted probation and had immediately intentionally violated it, under the guidelines (Fla.R.Crim.P. 3.701(d)(14)), his sentence could have been enhanced only one cell block to community control or 12-30 months incarceration. The sentence in this case appears to have occurred as a result of reactions at sentencing, and we feel justice would be served by the sentence being vacated and appellant being fully advised of his legal position and of the possible alternatives to probation (of which he is probably now well aware) and that he be clearly given an election between the recommended guideline sentence of any non-state prison sanction and a sentence one cell block upward.
The sentence imposed is vacated and the cause remanded for resentencing.
SENTENCE VACATED; REMANDED.
DAUKSCH and UPCHURCH, JJ., concur.
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Woods v. State, 542 So. 2d 443 (Fla. 5th DCA 1989)…Woods, a defendant has the right to reject probation and it was error for the trial court not to allow him to do so. Woods relies upon two cases in support of his position: Williams v. State, 522 So. 2d 1022 (Fla. 5th DCA 1988) and Holley v. State, 483 So. 2d 854 (Fla. 5th DCA 1986). In Holley we held that if a defendant refused to cooperate or accept probation or community control when that was the recommended sentence (any nonstate prison sanction), then the court could depart upward one cell, provided th…
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Williams v. State, 522 So. 2d 1022 (Fla. 5th DCA 1988)…sentencing hearing, Williams steadfastly declared that he did not want to be placed on probation because he wanted to leave the country and he did not think he could pay the fines and costs of probation. We vacate the sentence. In Holley v. State, 483 So. 2d 854 (Fla. 5th DCA 1986), we held that if a defendant refused to cooperate or accept probation or community control when that was the recommended sentence [any non-state prison sanction], then the court could depart upward one cell, provided that the def…
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Williams v. State, 541 So. 2d 764 (Fla. 5th DCA 1989)…se a sentence one bracket higher than the applicable guidelines range, without any time on probation. We dismiss this appeal for lack of jurisdiction. Appellant relies upon Williams v. State, 522 So. 2d 1022 (Fla. 5th DCA 1988) and Holley v. State, 483 So. 2d 854 (Fla. 5th DCA 1986). We think these cases are distinguishable because those defendants both fell into the non-state prison brackets under the guidelines, and neither had entered a guilty plea based on receiving a “guidelines sentence.” Here, the cou…
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