JOSEPH WILLIAM COLBERT, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court reversed a sentencing decision, holding that a defendant must be sentenced under the sentencing guidelines in effect at the time of sentencing, not at the time of the offense, and that the trial court improperly departed from the guidelines based on factors that would be specifically scored under the amended guidelines.
A defendant must be sentenced under the sentencing guidelines in effect at the time of sentencing, not at the time of the offense. Under the amended guidelines, the trial court cannot depart from the recommended sentence based on additional offenses that are already specifically scored in the guidelines.
[1] A defendant must be sentenced under the sentencing guidelines in effect at the time of sentencing, not at the time the offenses were committed.
[2] Departure from sentencing guidelines is prohibited when the reasons for departure are specifically scored under the guidelines in effect at the time of sentencing.
Previewing 2 of 3 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“petitioner contends that the trial court erred by sentencing him under the guidelines in effect at the time the offenses were committed, as opposed to those in effect when he was sentenced. We agree.”
Establishes the core holding that sentencing guidelines applicable at the time of sentencing, not offense, should govern.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceColbert was convicted of offenses and scored 138 points under the guidelines in effect at the time of the offense, which recommended a six-year senten…
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BARKETT, Justice.
We initially granted jurisdiction because the decision below, Colbert v. State, 474 So. 2d 218 (Fla.2d DCA 1985),* is in express and direct conflict with the decision reported as Young v. State, 455 So. 2d 551 (Fla. 1st DCA 1984), approved, 476 So. 2d 161 (Fla.1985). See art. V, § 3(b)(3), Fla.Const. We find our recent decision in State v. Jackson, 478 So. 2d 1054 (Fla.1985), issued after the jurisdictional briefs were filed in the case at bar, to be determinative.
In a variation on the usual post-Jackson theme, petitioner contends that the trial court erred by sentencing him under the guidelines in effect at the time the offenses were committed, as opposed to those in effect when he was sentenced. We agree.
Under the guidelines in effect at the time of the offense, petitioner’s recommended sentence with a score of 138 points was six years. The score included fourteen points for additional offenses at conviction. The trial court utilized those guidelines, but departed from the recommended sentence on the basis that the defendant had six additional offenses at conviction, and the guidelines scored the same number of points for four additional offenses as they did for any number of additional offenses in excess of four. The trial court believed this to be inadequate, construed the scoring to be limited to only four offenses, used the two additional offenses as a reason to depart, and sentenced petitioner to eight concurrent ten-year terms.
Florida Rule of Criminal Procedure 3.988(c) was amended between the time of the offense and the time of sentencing to specifically score the precise number of additional offenses at conviction. We need not determine whether the departure sentence under the prior guidelines was appropriate since pursuant to Jackson the defendant should have been sentenced in accordance with the guidelines in effect at the time of sentencing. Under those guidelines, departure for the reason given is clearly prohibited because the two robberies relied on for departure would be already specifically scored. See Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Accordingly, we quash the district court decision with directions that the matter be remanded to the trial court for the imposition of a guidelines sentence.
It is so ordered.
MCDONALD, C.J., and ADKINS, BOYD, OVERTON and EHRLICH, JJ., concur. SHAW, J., dissents with an opinion.
*
Although the decision below has been reported as an unexplained simple affirmance, the text of the district court’s opinion, in its entirety, reads as follows:
PER CURIAM.
Affirmed. Russell v. State, 458 So. 2d 422, 423 (Fla. 2d DCA 1984). However, we recognize that Russell is in conflict with Young v. State, 455 So. 2d 551, 552 (Fla. 1st DCA 1984).
SHAW, Justice,
dissenting.
I dissent for the reasons set forth in Justice Ehrlich’s dissent to State v. Jackson, 478 So. 2d 1054 (Fla.1985).
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Citator
Cited By
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Colbert v. State, 518 So. 2d 448 (Fla. 2d DCA 1988)…ntencing in accordance with the guidelines “in effect at the time of sentencing,” which we construe as the guidelines in effect at the time of the resentencing which, in pertinent part, are the same as the guidelines now in effect. Colbert v. State, 490 So. 2d 942, 943 (Fla.1986). (We hereinafter refer to the supreme court case as Colbert.) On remand for resentencing the trial court sentenced defendant to a split sentence of five and one-half years incarceration and ten years probation for each armed robbery…
Authorities Cited
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- State v. Young, 476 So. 2d 161 (Fla. 1985)
- Young v. State, 455 So. 2d 551 (Fla. 1st DCA 1984)
- Lima v. State, 458 So. 2d 422 (Fla. 2d DCA 1984)