ANDRE FRANCIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Andre Francis appealed his probation revocation and sentencing for burglary and grand theft. The court affirmed his sentence, holding that community control functions as a form of probation rather than incarceration and therefore his two-year prison sentence plus two years of community control fell within the applicable guidelines range.
The court held that Francis's sentence fell within the proper guidelines range and that it was unnecessary to evaluate the reasons for departure. Community control functions as a more restrictive form of probation rather than incarceration, and the guideline cell permitting 'community control or 12 to 30 months' incarceration' was designed to allow imposition of either or both sanctions in combination.
[1] A sentence imposed after revocation of probation may be increased to the next higher guidelines cell without requiring a reason for departure.
[2] Community control is a form of intensive supervised custody in the community that functions as a more restrictive form of probation.
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“the sentence imposed after revocation of probation 'may be increased to the next higher cell (guidelines range) without requiring a reason for departure.'”
Establishes that when probation is revoked, stricter sentencing rules apply and reasons for departure to a higher cell are not required
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Join FLexlaw to unlock all legal intelligenceFrancis was convicted of burglary and grand theft. His probation was revoked. The guidelines scoresheet reflected 24 points, placing him in a recommen…
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GRIMES, Acting Chief Judge.
Appellant’s contention that his probation should not have been revoked is without merit and need not be discussed. However, the argument concerning the propriety of his sentence warrants more consideration.
Appellant was convicted of burglary and grand theft. The guidelines scoresheet reflected twenty-four points which placed him in a recommended range of “any non-state prison sanction.” The court sen- teneed him to two years’ imprisonment followed by two years of community control and gave reasons for departure from the guidelines. Appellant attacks the reasons for departure as being legally insufficient.
We find it unnecessary to evaluate the reasons for departure because we believe that appellant’s sentence fell within the proper guidelines range. It must be emphasized that appellant was being sentenced upon the violation of his probation. Florida Rule of Criminal Procedure 3.701(d)(14) provides that the sentence imposed after revocation of probation “may be increased to the next higher cell (guidelines range) without requiring a reason for departure.” In appellant’s case, the next higher cell called for “community control or 12 to 30 months’ incarceration.” The guidelines committee note (d)(12) specifies that if a split sentence of state prison and probation supervision is imposed, the incar-cerative portion shall be within the guidelines range, and the total sanction shall not exceed the term provided by general law. Thus, the question before us is whether community control should be viewed as incarceration or probation.
Florida Rule of Criminal Procedure 3.701(d)(13) defines community control as “a form of intensive supervised custody in the community involving the restriction of the freedom of the offender” which may be imposed upon a finding that probation is an unsuitable disposition. Significantly, the rule further reads that when “community control is imposed, it shall not exceed the term provided by general law.” Thus, it would appear that the extent of community control is not regulated by the guidelines. In determining that community control and probation may be imposed in tandem, we recently explained that “community control, though an individualized program with the offender restricted within the community, essentially functions as a more restrictive form of probation.” Burrell v. State, 483 So. 2d 479 (Fla. 2d DCA 1986).
We believe that community control is more like probation than incarceration. Therefore, appellant’s sentence fell within the range of the guidelines.
We recognize that our holding appears to convert the applicable range to “community control and 12 to 30 months’ incarceration.” However, we believe that the use of the word “or” in this cell was not intended to make the alternatives mutually exclusive but rather was designed to permit the imposition of either or both sanctions. Otherwise, this would be the only cell in the entire burglary category in which an authorized imposition of community control could not be combined with incarceration.
Affirmed.
FRANK and HALL, JJ., concur.
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Cited By (28 total)
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State v. VanKOOTEN, 522 So. 2d 830 (Fla. 1988)…quiring proper written reasons for the departure. In so holding, the court relied on its decision in Hankey v. State, 505 So. 2d 701 (Fla. 5th DCA 1987), and certified conflict with the Second District Court of Appeal’s decision in Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986). We have jurisdiction, article V, section 3(b)(4), Florida Constitution, and approve VanKooten and Hankey and disapprove the Second District’s decision in Francis. In Francis, the district court recognized that its holding conv…
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State v. Bodine, 522 So. 2d 830 (Fla. 1988)…the Fifth District Court of Appeal in Bodine v. State, 517 So. 2d 782 (Fla. 5th DCA 1988).* It is so ordered. McDonald, C.J., and EHRLICH, SHAW, BARKETT and KOGAN, JJ., concur. * We have jurisdiction based on conflict with Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986). Art. V, § 3(b)(4), Fla.Const.…
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Felty v. State, 630 So. 2d 1092 (Fla. 1994)…o doubt that the length of the combined sentences of imprisonment and community control exceeded the guideline range in VanKooten, this was not the basis upon which the ease was decided. In our opinion, we rejected the rationale of Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986), which held that the use of the word “or” in the guideline provision for “community control or twelve to thirty monthst’] incarceration” was not intended to make the alternatives mutually exclusive but rather was designed to permi…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Burrell v. State, 483 So. 2d 479 (Fla. 2d DCA 1986)