EDWARD THOMAS RIDDLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant's probationary status at the time of the offense is an invalid reason for departing from sentencing guidelines.
[1] A defendant's probationary status at the time of an offense is an invalid reason for departing from sentencing guidelines when that status is already scored under "legal…
[2] A sentence imposed due to revocation of probation must be within the original sentencing cell or the next higher cell.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of grand theft of a motor vehicle and sentenced to three years in prison, departing from the recommended non-state prison …
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DAUKSCH, Judge.
This is an appeal from a sentence. Defendant was convicted of grand theft of a motor vehicle. His sentencing guidelines scoresheet totalled twenty-nine points. Of these twenty-nine points, six points were scored for legal constraint or defendant’s legal status at the time of the offense because he was on probation at the time of the offense. His recommended sentence under the guidelines was “any non-state prison sanction.” The trial court departed from the guidelines and sentenced defendant to three years in prison. The departure from the guidelines resulted in a two-cell upwards departure. For its reasons for departure, the trial court gave:
Defendant’s past juvenile record which was not scored; was on probation in another case at the time of offense, defd. already been given a break in adult court by being placed on probation.
Defendant contends that his probationary status at the time of the offense is an invalid reason for departure. We agree. Although there is no showing that the probation was revoked, even if the departure had been based on a revocation the sentence imposed because of revocation must be within the original cell or the next higher cell. Fla.R.Crim.P. 3.701(d)ll. See Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985). Also, a defendant’s probationary status at the time of the offense constitutes an invalid reason for departure because that factor is already scored under “legal constraint.” Davis v. State, 487 So. 2d 1104 (Fla. 5th DCA 1986); Burch v. State, 462 So. 2d 548 (Fla. 1st DCA 1985).
As to the trial court’s first reason for departure, a defendant’s juvenile record may be considered a valid reason for departing from the guidelines. Weems v. State, 451 So. 2d 1027 (Fla. 2d DCA 1984). Because it may not be said beyond a reasonable doubt that the trial judge would have sentenced the defendant to a three-year term based only upon his juvenile record, the sentence is vacated and this cause remanded for resentencing. Albritton v. State, 476 So. 2d 158 (Fla.1985).
SENTENCE VACATED; CAUSE REMANDED.
COBB, C.J., and ORFINGER, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hendsbee v. State, 497 So. 2d 718 (Fla. 2d DCA 1986)…alysis of their invalidity follows: Probation violation. An appellant’s probation violation may not be used to depart from the sentencing guidelines. Probation is already taken into account in the sentencing guidelines scoresheet. Riddle v. State, 488 So. 2d 903 (Fla. 5th DCA 1986). Victim injury. An element of aggravated battery, victim injury, is scored on the scoresheet. Victim injury may not be figured into the scoresheet and also used to depart from the sentencing guidelines. Scurry v. [*719] State,…
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Watkins v. State, 498 So. 2d 576 (Fla. 3d DCA 1986)…factored the defendant’s legal status at the time of the offense into the guidelines scoresheet but also used the same legal status as a basis for departure from the guidelines. Brown v. State, 488 So. 2d 641 (Fla. 2d DCA 1986); see Riddle v. State, 488 So. 2d 903 (Fla. 5th DCA 1986); Hutchinson v. State, 479 So. 2d 267 (Fla. 1st DCA 1985). For these reasons, we hold that resentencing is required. Watkins also asserts that his attorney failed to provide effective assistance of counsel. We find this contentio…
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Williams v. State, 492 So. 2d 1171 (Fla. 5th DCA 1986)…to 1976. Williams has an extensive juvenile record,4 and he was sentenced as a youthful offender for a crime involving the use of a deadly weapon. Weems v. State, 451 So. 2d 1027 (Fla. 2d DCA 1984), aff'd, 469 So. 2d 128 (Fla.1985); Riddle v. State, 488 So. 2d 903 (Fla. 5th DCA 1986); Nixon v. State, 494 So. 2d 222 (Fla. 1st DCA 1986). Although the fourth reason is insufficient standing alone and apart from the others, we think it is clear in this case that it can be ignored as redundant. It is obviously the…
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
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Burch v. State, 462 So. 2d 548 (Fla. 1st DCA 1985)
- Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985)
- Sherman v. State, 451 So. 2d 1027 (Fla. 2d DCA 1984)
- Davis v. State, 487 So. 2d 1104 (Fla. 5th DCA 1986)