PATRICIA S. MITCHELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A trial judge may depart one cell from a presumptive guidelines sentence without reason after a probation revocation, but any further departure must be supported by clear and convincing written reasons not related to the probation violation.
Appellant pleaded guilty to grand theft and was sentenced. After violating probation, her presumptive guidelines sentence recommended a nonstate priso…
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HALL, Judge.
Patricia Mitchell appeals her sentence for grand theft. We find merit in her argument that the trial judge erred in aggravating her presumptive guidelines sentence. We, therefore, reverse and remand this case for resentencing.
Appellant was originally sentenced to one year community control, to be followed by four years’ probation, as a result of her plea of guilty to a charge of grand theft. After her subsequent arrest on another charge of grand theft, appellant was found to have violated her probation and it was revoked. Appellant’s scoresheet indicated an assessment of fifteen points, for which the guidelines recommended any nonstate prison sanction. However, the trial judge departed three cells from this recommended sentence and sentenced appellant to four years’ imprisonment. His written reason for this departure was “violation of probation demonstrating complete disregard for law and property rights of others.”
When imposing a sentence after a revocation of probation, a trial judge may depart one cell from the presumptive guidelines sentence without giving a reason therefor. Fla.R.Crim.P. 3.701(d)(14). Any further departure must be supported by clear and convincing written reasons not related to the violation of probation. Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985). Because the reason for departure in this case was related to appellant’s violation of her probation, a departure of only one cell from the presumptive sentence would have been valid.
Accordingly, we reverse appellant’s sentence and remand for sentencing.
RYDER, C.J., and FRANK, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Alexander v. State, 513 So. 2d 1117 (Fla. 2d DCA 1987)…cation of probation, a trial judge may depart one cell without giving a reason. Fla.R.Crim.P. 3.701(d)(14). Any further departure must be supported by clear and convincing written reasons not related to the violation of probation. Mitchell v. State, 488 So. 2d 911 (Fla. 2d DCA 1986); Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985). Because the reason for departure is related to Alexander’s violation of probation, the departure in this case of more than one cell is invalid. The second reason for departur…
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Simmons v. State, 496 So. 2d 911 (Fla. 2d DCA 1986)…for departure. Fla.R.Crim. P. 3.701(d)(14). If the sentence is to be increased beyond a one cell departure, as in this case, the trial court must provide clear and convincing written reasons not related to the probation violation. Mitchell v. State, 488 So. 2d 911 (Fla. 2d DCA 1986). The state contends that this reason for departure is valid given that appellant has twice violated his probation. While it is true that a second probation violation is a valid reason for departure, Adams v. State, 490 So. 2d 53 (…
Authorities Cited
- Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985)