RONNIE EDWARD BRUNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1986-05-07
No. BG-397
BOOTH, C.J., and WIGGINTON, J„ concur.
489 So. 2d 1159 Florida District Court of Appeal, First District (1986) Negative Treatment
Cited by 10 cases

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Synopsis

Brunson appeals his sentence imposed following revocation of probation for a murder committed while on probation for prior theft and burglary offenses. The court affirms the probation revocation but reverses and remands for resentencing because the trial court committed sentencing guideline errors and failed to provide written reasons for departing from recommended guidelines.


Holding

The court affirms the revocation of probation but reverses and remands for resentencing because: (1) the trial court failed to include case #83-1677 in the sentencing guideline scoresheet; (2) the trial court departed from the recommended guidelines without stating written clear and convincing reasons; and (3) proper sentencing procedures must be followed on remand.


Headnotes

[1] A single guideline scoresheet must be prepared covering all offenses pending before the court for sentencing.

[2] A trial court must state clear and convincing written reasons for departing from the recommended sentencing guidelines range when revoking probation, unless the departure…

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Key Quotes

“the trial court erred in sentencing appellant without scoring the two counts of case # 83-1677 in the guidelines scoresheet in violation of Fla.R.Crim.P. 3.701(d)(1) which requires one guideline scoresheet be prepared covering all offenses pending before the court for sentencing”

Establishes the first error: failure to include all pending cases in a single scoresheet

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Facts & Procedural History

In 1982, Brunson was placed on five years probation for dealing in stolen property, burglary, and grand theft. In 1983, he received concurrent probati…

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Opinion of the Court
SHIVERS, Judge.

SHIVERS, Judge.

Ronnie Brunson appeals a sentence imposed outside the sentencing guidelines, following the revocation of his probation. We affirm the revocation of probation but reverse and remand for resentencing.

In 1982 Brunson was placed on five years probation for one count of dealing in stolen property and two counts of both burglary and grand theft (Case # 82-1685). In 1983, Brunson was placed on three years probation as to one count each of burglary and grand theft (Case #83-1677) to run concurrently with his previous order of probation. In 1984, Brunson violated his probation by committing a murder. The trial court revoked Brunson’s probation in case numbers 82-1685 and 83-1677. Brunson received sentence of five consecutive five year terms by the trial court’s departure from the recommended guidelines of 12-30 months incarceration. Brunson appeals the sentence, alleging scoresheet errors. We agree.

First, the trial court erred in sentencing appellant without scoring the two counts of case # 83-1677 in the guidelines scoresheet in violation of Fla.R.Crim.P. 3.701(d)(1) which requires one guideline scoresheet be prepared covering all offenses pending before the court for sen tencing. A review of the record reveals that the scoresheet and order of revocation cover case # 82-1685, but not case # 83-1677. It is clear from the court’s discussion at the sentencing hearing that the trial judge was imposing sentences for revocation of probation in both cases.

Second, the trial court erred by departing from the recommended range for probation violation without written reasons for the departure in case # 82-1685. State v. Boynton, 478 So. 2d 351 (Fla.1985). As this court has recognized, Rule 3.701(d)(14), Fla. R.Crim.P.:

[Authorizes the trial court upon revocation of probation to increase a defendant’s sentence to the next higher guidelines cell without explanation, but precludes an increase of the sentence beyond one guidelines cell unless the court states clear and convincing reasons for such departure other than the fact that the defendant violated probation, (emphasis supplied).

Sutton v. State, 485 So. 2d 836, 837 (Fla. 1st DCA, 1986); Proctor v. State, 480 So. 2d 160, 162 (Fla. 1st DCA 1985). The appellate courts of the state have been given the responsibility of determining whether the trial court has articulated clear and convincing reasons for departing from the guidelines sentence. Corum v. State, 484 So. 2d 102 (Fla. 1st DCA, 1986). No written reasons at all were given for the trial court’s departure.

Third, the sentencing guidelines scoresheet for case #82-1685 contains a mathematical error. The total points are given as 54 but actually total 64. Brun-son’s sentence was unaffected because both calculations fall within the same sentencing range. The Florida Supreme Court has recently held that sentencing errors which do not produce an illegal sentence or an unauthorized departure from the sentencing guidelines still require a contemporaneous objection if they are to be preserved for appeal. State v. Whitfield, 487 So. 2d 1045 (Fla.1986). No contemporaneous objection was made by Brunson at the sentencing hearing. According to Whitfield, Brunson waived his right of appellate review on the issue of mathematical error. Nevertheless, the sentence must be vacated because the trial court failed to state written reasons for departure in case # 82-1685 and failed to include case # 83-1677 in the guidelines scoresheet.

Accordingly, the revocation of probation is affirmed but the appellant’s sentences for violation of probation in both cases # 82-1685 and # 83-1677 are vacated and the cause remanded for resentencing. A proper sentencing guideline scoresheet including both offenses must be utilized by the trial court at the resentencing. The trial court may reimpose sentences outside the guidelines only if the court states in writing clear and convincing reasons.

AFFIRMED in part, VACATED in part and REMANDED for resentencing.

BOOTH, C.J., and WIGGINTON, J„ concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Atwaters v. State, 495 So. 2d 1219 (Fla. 1st DCA 1986)
    …that appellant was on probation at the time of offense — does not constitute a clear and convincing reason for departure. Rule 3.701(d)(14), Florida Rules of Criminal Procedure; Sutton v. State, 485 So. 2d 836 (Fla. 1st DCA 1986); Brunson v. State, 489 So. 2d 1159 (Fla. 1st DCA 1986); Hendrix. Under rule 3.701(d)(14), even though violation of probation cannot be a reason for departure, it can support, without departure, the bumping up of a sentence by one cell. However, in the instant case, the sentence was b…
  • Brown v. State, 502 So. 2d 1293 (Fla. 1st DCA 1987)
    …the state’s contention that we cannot review this error because no contemporaneous objection was made at sentencing has been determined adversely to the state’s position in State v. Whitfield, 487 So. 2d 1045 (Fla.1986). See also Brun-son v. State, 489 So. 2d 1159 (Fla. 1st DCA 1986). [*1294] Second, we hold that it was error to include the twenty-four points for “legal constraint.” Rule 3.701(d)(6), Florida Rules of Criminal Procedure, provides: Legal status at time of offense is defined as follows: Offende…
  • Gibbons v. State, 540 So. 2d 144 (Fla. 4th DCA 1989)
    …sult would be different if the sentencing error involved either factual matters not apparent or determinable from the record, see Dailey v. State, 488 So. 2d 532 (Fla.1986); or if the error did not affect the recommended range, see Brunson v. State, 489 So. 2d 1159 (Fla. 1st DCA 1986). The state correctly points out that the sentence actually imposed (various concurrent sentences which equate to a seven-year sentence) was within the recommended range that a correct computation would have generated. This is so…

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