REGINALD LEON CARLISLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant was sentenced to five years imprisonment after probation revocation for drug sales, but the trial court's departure from the sentencing guidelines was based solely on the probation violation. The appellate court reversed, holding that while probation revocation allows an increase to the next higher guideline cell, any departure beyond that cell requires clear and convincing reasons independent of the violation itself.
A sentence imposed after probation revocation must comply with guidelines and may be increased to the next higher cell without requiring a departure reason; however, any departure beyond the next higher cell must be supported by clear and convincing reasons other than the probation violation itself.
[1] A violation of probation alone is not a sufficient reason for a trial court to depart from the sentencing guidelines beyond the next higher cell.
[2] Sentences imposed after revocation of probation must be in accordance with the sentencing guidelines.
Previewing 2 of 4 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“Sentences imposed after revocation of probation or community control must be in accordance with the guidelines. The sentence imposed after revocation of probation may be included within the original cell (guidelines range) or may be increased to the next higher cell (guidelines range) without requiring a reason for departure.”
Rule 3.701(d)(14) establishing that probation revocation allows one-cell increase without departure justification
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Join FLexlaw to unlock all legal intelligenceIn 1983, Carlisle was charged with sale of cannabis and cocaine, pleaded guilty, and received three years probation. Less than one year later, he alle…
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SHIVERS, Judge.
This is an appeal of the trial court’s departure from the sentencing guidelines recommended sentence. We reverse and remand for resentencing.
Appellant/defendant was changed in 1983 with sale of cannabis and sale of cocaine. After entering a plea of guilty to the charges, he was placed on probation for a term of three years. Less than one year later, an affidavit was filed alleging that appellant had violated his probation by selling marijuana and cocaine. After conducting a hearing on the matter, appellant was found to be in violation and his probation was revoked. The sentencing guidelines scoresheet, prepared on the basis of the two 1983 charges, recommended a sentence of any non-state prison sanction. Despite that recommendation, the trial court departed and imposed concurrent five-year sentences for each count. The departure was based solely on the fact that appellant had violated his probation.
Appellant now argues that the trial court erred in using his violation of probation as a reason for departure from the guidelines. We agree. Rule 3.701(d)(14), Fla.R.Crim.P., which became effective on July 1, 1984, provides as follows:
Sentences imposed after revocation of probation or community control must be in accordance with the guidelines. The sentence imposed after revocation of probation may be included within the original cell (guidelines range) or may be increased to the next higher cell (guidelines range) without requiring a reason for departure.
Prior to the adoption of subsection (d)(14), revocation of probation constituted a clear and convincing reason for departure from the guidelines. Harris v. State, 465 So. 2d 545 (Fla. 1st DCA 1985); Randolph v. State, 458 So. 2d 64 (Fla. 1st DCA 1984). Since the rule now provides that a sentence imposed after revocation of probation may be increased to the next 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 guidelines, such departure must be supported by clear and convincing reasons other than the fact that a violation of probation occurred.
REVERSED and REMANDED for re-sentencing.
JOANOS and NIMMONS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Brown v. State, 488 So. 2d 641 (Fla. 2d DCA 1986)…2d 861 (Fla. 4th DCA 1985). However, where, as here, the sentence imposed is in excess of the next higher cell, a departure must be supported by a clear and convincing reason other than a single violation of community control. See Carlisle v. State, 485 So. 2d 26 (Fla. 1st DCA 1986); Irving v. State, 484 So. 2d 78 (Fla. 2d DCA 1986). We find that the court in the instant case did not provide clear and convincing reasons to support its four cell departure. Although the court noted that the underlying reason…
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Stabler v. State, 486 So. 2d 51 (Fla. 1st DCA 1986)…robation is the sole reason for departure, the trial court cannot depart further than the “one cell” allowed by the rule. Stewart v. State, 480 So. 2d 1387 (Fla. 1st DCA 1986); Ludmin v. State, 480 So. 2d 1389 (Fla. 1st DCA 1986); Carlisle v. State, 485 So. 2d 26, (Fla. 1st DCA 1986). Based on the foregoing, we vacate the sentence and remand to the trial court for resentencing in accordance with this opinion. BOOTH, C.J., and WIGGINTON and BARFIELD, JJ., concur.…
Authorities Cited
- Randolph v. State, 458 So. 2d 64 (Fla. 1st DCA 1984)
- Harris v. State, 465 So. 2d 545 (Fla. 1st DCA 1985)
- Donnell Stewart v. State, 480 So. 2d 1387 (Fla. 1st DCA 1986)
- Ludmin v. State, 480 So. 2d 1389 (Fla. 1st DCA 1986)