KIMBERLY M. MESTAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellate court affirmed probation but struck the two-year community control condition because the trial court imposed a sentencing departure without written reasons as required by Florida Criminal Procedure Rule 3.701(d)(11).
A trial court must provide written reasons for any departure from sentencing guidelines, and a condition requiring community control constitutes an improper departure when the guidelines recommend only non-state prison sanctions.
[1] A trial court must provide written reasons for any sentencing departure from the guidelines, including imposing community control when guidelines recommend only non-state…
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Join FLexlaw to unlock all legal intelligenceDefendant Mestas pleaded guilty to second-degree grand theft and received 13 points under the sentencing guidelines, recommending any non-state prison…
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SCHEB, Acting Chief Judge.
Defendant Kimberly Mestas appeals an order withholding adjudication and placing her on probation for grand theft. She contends that the portion of the order requiring her to serve two years community control as a condition of probation is improper and should be stricken. We agree.
Defendant pled guilty to second degree grand theft. The trial court accepted her plea after finding that it was voluntary and there was a sufficient factual basis for it. The court withheld adjudication. Under her sentencing guidelines scoresheet, defendant received a total of thirteen points which translated into a recommendation of any non-state prison sanction. Fla.R. Crim.P. 3.988(f). At the sentencing hearing, the court placed her on probation for five years with the condition that the first two years be served under community control.
By requiring defendant to serve two years community control, the trial court effectively imposed a sentence in the next higher cell under the guidelines, which recommends a sanction of community control or twelve to thirty months’ incarceration. See rule 3.988(f). Thus, this sentence was a departure from the recommended range of any non-state prison sanction. Consequently, the court erred in failing to provide written reasons for this departure. Fla.R.Crim.P. 3.701(d)(ll); State v. Boynton, 478 So. 2d 351 (Fla.1985); State v. Jackson, 478 So. 2d 1054 (Fla.1985).
Accordingly, we affirm the defendant’s placement on probation but remand to the trial court to strike the condition of probation which requires her to serve two years community control.
LEHAN and FRANK, JJ., concur.
PER CURIAM.
In a motion for rehearing, the state for the first time cites to Davis v. State, 461 So. 2d 1003 (Fla. 1st DCA 1984) and Louzon v. State, 460 So. 2d 551 (Fla. 5th DCA 1984). In these two cases our sister courts have held that a trial court may impose community control as a sanction under the sentencing guidelines category of any nonstate prison sanction.
We deny the state’s motion for rehearing but grant its request that we certify our decision conflicts with these decisions of the First and Fifth District Courts of Appeal.
SCHEB, A.C.J., and LEHAN and FRANK, JJ., concur.
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State v. Mestas, 507 So. 2d 587 (Fla. 1987)…BARKETT, Justice. We have for review Mestas v. State, 484 So. 2d 612 (Fla. 2d DCA 1986), because of certified conflict with Davis v. State, 461 So. 2d 1003 (Fla. 1st DCA 1984), and Louzon v. State, 460 So. 2d 551 (Fla.5th DCA 1984). We have jurisdiction. Art. V, § 3(b)(4), Fla.Const. The issue presented is whether a…
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Petras v. State, 486 So. 2d 44 (Fla. 5th DCA 1986)…3.701. . Bordeaux v. State, 471 So. 2d 1353 (Fla. 1st DCA 1985). Only felonies should be included in this category. . Louzon v. State, 460 So. 2d 551 (Fla. 5th DCA 1984); Davis v. State, 461 So. 2d 1003 (Fla. 1st DCA 1984). . See Mestas v. State, 484 So. 2d 612, (Fla. 2d DCA 1986). . The Florida Bar Re: Rules of Criminal Procedure, 11 F.L.W. 15 (Fla. Dec. 19, 1985). . See Smith v. State, 484 So. 2d 581, (Fla.1986); Burrell v. State, 483 So. 2d 479 (Fla. 2d DCA 1986).…
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Martire v. State, 486 So. 2d 681 (Fla. 2d DCA 1986)…ure from the recommended range of any nonstate prison sanction. Consequently, the trial court erred in failing to provide written reasons for departure. Fla.R.Crim.P. 3.701(d)(11), (12); State v. Jackson, 478 So. 2d 1054 (Fla.1985); Mestas v. State, 484 So. 2d 612 (Fla. 2d DCA 1986) [11 FLW 315]. Second, the record demonstrates that appellant’s probation was never revoked. Therefore, the trial court erred in applying Florida Rule of Criminal Procedure 3.701(d)(14) to increase appellant’s recommended sentence…
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)
- State v. Boynton, 478 So. 2d 351 (Fla. 1985)
- Davis v. State, 461 So. 2d 1003 (Fla. 1st DCA 1984)
- Claudette Lisa Louzon v. State, 460 So. 2d 551 (Fla. 5th DCA 1984)