IRA MAXWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ira Maxwell appeals from two four-year sentences imposed for violating probation. The court reverses and remands because the trial court improperly applied sentencing guidelines without the defendant's affirmative election, as required for offenses occurring before October 1, 1983.
The court held that for offenses occurring prior to October 1, 1983, the sentencing guidelines may be applied only where the defendant affirmatively elects to be sentenced under them. The record contained no affirmative election; mere discussion of a scoresheet by defense counsel and failure to object does not constitute the requisite clear and unequivocal choice. The case is reversed and remanded for resentencing, at which point the defendant may affirmatively elect guidelines sentencing or require sentencing under pre-guidelines law.
[1] Sentencing guidelines may be applied to offenses occurring prior to October 1, 1983, only where the defendant has affirmatively elected to be sentenced under them.
[2] A discussion of a sentencing guidelines scoresheet by defense counsel with the trial court does not, by itself, constitute an affirmative election to be sentenced under t…
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Join FLexlaw to unlock all legal intelligence“When an offense has occurred prior to October 1, 1983, the sentencing guidelines may be applied only where the defendant has affirmatively elected to be sentenced under them.”
Establishes the legal standard governing applicability of sentencing guidelines for pre-October 1983 offenses
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Join FLexlaw to unlock all legal intelligenceMaxwell was charged with two counts of robbery in December 1980 and pleaded guilty in March 1981, receiving four years probation with 364 days county …
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PER CURIAM.
The appellant, Ira Maxwell, appeals from two four-year sentences imposed upon him for violating probation. Of the two arguments appellant raised on appeal, we find merit only in his contention that, in the absence of an affirmative election, the trial court erred in sentencing appellant under the sentencing guidelines, Florida Rules of Criminal Procedure 3.701.
On December 11, 1980, appellant was charged by separate informations with two counts of robbery pursuant to section 812.-13(2)(c), Florida Statutes (1979). Appellant pleaded guilty to the charges and, on March 30, 1981, was placed on four years probation with a condition of serving 364 days in county jail.
On August 21, 1984, a warrant was issued charging appellant with violating four conditions of probation, and on February 14, 1985, appellant was found guilty of violating three of the conditions. A discussion of a sentencing guidelines scoresheet took place at the sentencing hearing, during which defense counsel objected to points being added for legal constraint and victim injury. Defense counsel subsequently requested that the court either continue appellant on probation or modify appellant’s probation by placing him on community control “notwithstanding the guidelines.” The trial court sentenced appellant under the guidelines to concurrent terms of four years imprisonment with credit for time served. Appellant timely filed notices of appeal from the judgments and sentences, and the appeals were consolidated.
When an offense has occurred prior to October 1, 1983, the sentencing guidelines may be applied only where the defendant has affirmatively elected to be sentenced under them. In Re Rules of Criminal Procedure, 439 So. 2d 848 (Fla.1983).
The record before us contains no affirmative election, and the law is clear that defense counsel’s discussion of a scoresheet with the trial court, by itself, does not constitute the requisite clear and unequivocal choice made by a defendant on the record. Blackwelder v. State, 476 So. 2d 280 (Fla. 2d DCA 1985); see also, Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984).
Although defense counsel’s request to the court for alternative sentencing “notwithstanding the guidelines” may not have constituted a categorical objection to imposition of a sentence under the guidelines, failure to specifically object to guidelines sentencing does not constitute a clear and unequivocal election. See Parsons v. State, 470 So. 2d 834 (Fla. 2d DCA 1985); Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985); Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984).
We, therefore, reverse and remand for resentencing. At resentencing, the appellant may affirmatively elect to be sentenced under the guidelines. If he does not, the court must resentence him according to the law in effect prior to the adoption of the guidelines. We affirm the judgment in all other respects.
Reversed and remanded for resentencing.
RYDER, C.J., and DANAHY and SCHOONOVER, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Taylor v. State, 498 So. 2d 599 (Fla. 2d DCA 1986)…delines sentence for the uttering crime, a pre-guidelines occurrence. We agree and note that the mere discussion of the guidelines score-sheet during the revocation/sentencing proceeding does not constitute an affirmative election. Maxwell v. State, 489 So. 2d 1218 (Fla. 2d DCA 1986). Thus, the sentencing order should be corrected to reflect that the sentence for uttering is a non-guidelines sentence affording Taylor the right to seek parole. Jackson v. State, 478 So. 2d 515 (Fla. 2d DCA 1985). Taylor also co…
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Bogan v. State, 502 So. 2d 1341 (Fla. 2d DCA 1987)…g Guidelines), 439 So. 2d 848 (Fla.1983). Even though a guidelines scoresheet was prepared in this case and was discussed at the revocation proceeding, neither of these actions meets the requirement of an affirmative selection. See Maxwell v. State, 489 So. 2d 1218 (Fla. 2d DCA 1986); Wright v. State, 478 So. 2d 524 (Fla. 2d DCA 1985); Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985). As the record contains no clear and unequivocal choice by the appellant to be sentenced under the guidelines, we must remand…
Authorities Cited
- In re Rules of Criminal Procedure (sentencing Guidelines), 439 So. 2d 848 (Fla. 1983)
- Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984)
- Blackwelder v. State, 476 So. 2d 280 (Fla. 2d DCA 1985)
- Rodriguez v. State, 458 So. 2d 899 (Fla. 2d DCA 1984)
- Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985)
- Parsons v. State, 470 So. 2d 834 (Fla. 2d DCA 1985)