JAMES DAVID WRIGHT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James David Wright appeals his seven-year sentence for violation of probation, challenging the trial court's departure from sentencing guidelines. The appellate court reverses because one of the two stated reasons for departure was improperly based on the violation of probation itself, which was already factored into the guidelines calculation.
The court reversed and remanded for resentencing because the trial court improperly relied on absconding from supervision as a reason for departure when that conduct was already factored into the violation of probation charge and the guidelines calculation. While the court could use the misdemeanor obstruction conviction as a valid reason for departure, there was no evidence the judge would have imposed a seven-year sentence based solely on that conviction.
[1] A court may not use reasons for violation of probation as grounds for departing from sentencing guidelines when those reasons have already been factored into the recommen…
[2] A misdemeanor conviction that occurs subsequent to the commission of the primary offense may be used as a reason for departure from sentencing guidelines.
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“The court's first reason for departure, that appellant "absconded from supervision" was one of the reasons for the violation of probation charge. Appellant's recommended guidelines sentence was within the two and one-half to three and one-half-year range after being increased one category for violation of probation. Therefore, because the charge of violation of probation was already factored into the recommended guidelines sentence, the court erred in using this as one of the reasons for departure.”
Establishes the fundamental error: the trial court double-counted the same conduct by using absconding as both a reason for the violation charge (reflected in the guidelines) and as a separate reason for departure.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWright was originally charged with possession of a firearm by a convicted felon, pleaded guilty, and received fifteen years probation with a condition…
The full statement of facts, procedural history, and disposition for this case are member content.
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RYDER, Chief Judge.
James David Wright appeals his sentence of seven years imprisonment. We reverse and remand for resentencing.
The state charged appellant with possession of a firearm by a convicted felon. Appellant pleaded guilty. The court adjudicated him guilty and placed him on fifteen years probation with the special condition that he pay the sheriff’s office $500.00 within six months. Subsequently, appellant’s probation officer executed an affidavit alleging that appellant had failed to report to his office as required, failed to pay his supervision fees, failed to pay the $500.00, and failed to obtain permission to change residences before changing his address.
According to the police booking report, when the police arrested appellant for violation of probation, appellant denied he was James Wright. He produced a social security card and a birth registration card which identified him as Ronnie Wright. After the police brought appellant to the police station, he admitted that he was, in fact, James Wright and had used the false identification. The booking report listed the charges against appellant as violation of probation and obstruction by false information.
Appellant pleaded guilty to violation of probation and elected to be sentenced under the guidelines. During the hearing, appellant told the court that he had previously pleaded guilty to the misdemeanor charge of obstruction by false information, and the court had sentenced him to ten days.
Under the guidelines, appellant’s recommended sentence was within the two and one-half to three and one-half-year range after being raised one category for violation of probation. The court revoked appellant’s probation and announced it intended to sentence appellant to a term of imprisonment which would exceed the time recommended by the guidelines. Thereafter, the trial judge imposed a sentence of seven years imprisonment. The court’s written reasons for departure were that “defendant absconded from supervision and changed his name in an effort to avoid detection and apprehension.”
The court’s first reason for departure, that appellant “absconded from supervision” was one of the reasons for the violation of probation charge. Appellant’s recommended guidelines sentence was within the two and one-half to three and one-half-year range after being increased one category for violation of probation. Therefore, because the charge of violation of probation was already factored into the recommended guidelines sentence, the court erred in using this as one of the reasons for departure. See Booker v. State, 482 So. 2d 414, 418 (Fla. 2d DCA 1985).
The court’s second reason for departure, that appellant “changed his name in an effort to avoid detection and apprehension,” was based upon appellant’s misdemeanor conviction of obstruction by false information. This conviction could not be scored under the prior record category on the scoresheet because it occurred subsequent to the commission of the primary offense. Therefore, the trial judge could properly use this conviction as a reason to depart from the sentencing guidelines. Prince v. State, 461 So. 2d 1015, 1016 (Fla. 4th DCA 1984); Davis v. State, 455 So. 2d 602, 603 (Fla. 5th DCA 1984).
There is no evidence that the trial judge would have imposed a departure sentence of seven years based only upon appellant’s prior misdemeanor conviction. Therefore, under Albritton v. State, 476 So. 2d 158 (Fla.1985), we are required to reverse and remand for sentencing.
Reversed and remanded.
FRANK and SANDERLIN, JJ., concur.
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Felts v. State, 537 So. 2d 995 (Fla. 1st DCA 1988)…rule 3.701(d)(5). . Campos v. State, 515 So. 2d 1358 (Fla. 4th DCA 1987). . Austin v. State, 507 So. 2d 132 (Fla. 1st DCA 1987); Pugh v. State, 499 So. 2d 54 (Fla. 1st DCA 1986); Kigar v. State, 495 So. 2d 273 (Fla. 5th DCA 1986); Wright v. State, 491 So. 2d 283 (Fla. 2d DCA 1986); Safford v. State, 488 So. 2d 141 (Fla. 5th DCA 1986); Hunt v. State, 468 So. 2d 1100 (Fla. 1st DCA 1985); Prince v. State, 461 So. 2d 1015 (Fla. 4th DCA 1984); and Davis v. State, 455 So. 2d 602 (Fla. 5th DCA 1984). . The partie…
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Wichael v. State, 567 So. 2d 549 (Fla. 5th DCA 1990)….1990); Kigar v. State, 495 So. 2d 273 (Fla. 5th DCA 1986). Some of this case law may now be in doubt because the cases involve sentences imposed after revocation of probation. See Allen v. State, 529 So. 2d 321 (Fla. 2d DCA 1988); Wright v. State, 491 So. 2d 283 (Fla. 2d DCA 1986); Davis v. State, 455 So. 2d 602 (Fla. 5th DCA 1984). They would now be improper pursuant to Lambert v. State, 545 So. 2d 838 (Fla.1989); Ree v. State, 565 So. 2d 1329 (Fla.1990). But other cases clearly involve imposition of depar…
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McPHAUL v. State, 496 So. 2d 1009 (Fla. 2d DCA 1986)…elied upon by the court, however, is a valid basis for departure — that the defendant also stood convicted of first degree murder, a capital felony that could not be scored. Smith v. State, 454 So. 2d 90 (Fla. 2d DCA 1984); see also Wright v. State, 491 So. 2d 283 (Fla. 2d DCA 1986) (subsequent unscored conviction may form proper basis for departure). In light of the numerous invalid justifications employed by the trial court, however, we are not convinced beyond a reasonable doubt that departure from the gui…
Authorities Cited
- City OF Atl. Beach v. Bull, 476 So. 2d 158 (Fla. 1985)
- Albritton v. State, 476 So. 2d 158 (Fla. 1985)
- Dilar S. Booker v. State, 482 So. 2d 414 (Fla. 2d DCA 1985)
- Davis v. State, 455 So. 2d 602 (Fla. 5th DCA 1984)
- Prince v. State, 461 So. 2d 1015 (Fla. 4th DCA 1984)