PATRICK C. CHIODO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Patrick Chiodo appealed his three-year prison sentence imposed after revocation of probation for probation violations. The Florida appellate court reversed, holding that the trial judge improperly sentenced Chiodo beyond the guidelines' recommended range without sufficiently clear and convincing reasons, and that probation violations should be factored into the guidelines structure rather than used as independent grounds for departure.
The court held that the trial judge erred in imposing a sentence exceeding the guidelines' recommended range. Probation violations can be automatically factored into the guidelines structure with a one-cell enhancement under Rule 3.701(d)(14), but using probation violations without additional clear and convincing reasons to further depart from guidelines is improper and analogous to prohibited use of prior convictions.
[1] A trial court may not depart from the recommended sentencing guidelines range without clear and convincing reasons.
[2] Offenses committed while a defendant is on probation can be factored into the guidelines structure for enhancement.
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“That reason, however, is not sufficiently clear and convincing to justify a sentence in excess of the recommended range.”
Establishes that the trial judge's stated reason for the departure was insufficient under the applicable legal standard.
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Join FLexlaw to unlock all legal intelligenceChiodo originally pleaded nolo contendere to resisting an officer with violence, driving while intoxicated, and violating a driver's license restricti…
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FRANK, Judge.
Patrick Chiodo, appealing from a sentence imposed after probation violations, maintains that the trial judge erred in sentencing him in excess of the guidelines’ recommended range.
We agree, reverse and remand for resentencing. Chiodo originally pleaded nolo conten-dere to resisting an officer with violence, to related charges of driving while intoxicated and the violation of a driver’s license restriction.
Pursuant to the recommendation of the sentencing guidelines the trial court placed him on five years probation. Subsequently, however, Chiodo’s probation officer filed an affidavit of probation violation alleging that Chiodo had been twice convicted of DUI, had resisted arrest without violence, had used intoxicants to excess, and had failed to pay court costs. The court revoked probation and sentenced Chiodo to three years in prison. The score-sheet reflects a recommended range for the original offenses as “any non state prison sanction”; the next higher cell is “community control or 12-30 months incarceration.”
As is reflected in his written departure order, the trial judge was perturbed by the similarity of the offenses Chiodo committed while on probation to the offenses for which he was being sentenced. That reason, however, is not sufficiently clear and convincing to justify a sentence in excess of the recommended range. Although a sentence within the next higher cell is proper upon revocation of probation, Florida Rule of Criminal Procedure 3.701(d)(14), and would have produced a maximum term only six months less than the sentence actually imposed, the trial judge apparently did not consider this alternative.
In our view, the significance of Florida Rule of Criminal Procedure 3.701(d)(14) should not be overlooked; offenses committed while a defendant is on probation can be automatically factored into the guidelines structure with resultant enhancement but without deference to Rule 3.701(d)(11).
Thus, use of the probation violations — without additional clear and convincing reasons — to impose a sentence beyond the one cell increase permitted by the guidelines is analogous to the Hendrix prohibition against using prior criminal convictions, without more, to depart from the presumptive sentence. See Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
Thus, only when the offenses committed on probation are quite egregious will further departure be warranted. See Brown v. State, 488 So. 2d 641 (Fla. 2d DCA 1986).
Accordingly, the appellant’s sentence is reversed and this cause is remanded for resentencing.
RYDER, C.J., and HALL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Brown v. State, 488 So. 2d 641 (Fla. 2d DCA 1986)