THOMAS LYNCH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lynch appeals the revocation of his probation and subsequent sentencing. The court affirmed the probation revocation but reversed the sentencing order, finding that Lynch did not affirmatively elect to be sentenced under the sentencing guidelines and remanded for resentencing.
The court held that Lynch did not affirmatively elect to be sentenced under the guidelines because his attorney's statements reflected a mistaken belief that guidelines automatically applied and Lynch's comments were merely inquiries about his sentence rather than an election. The court affirmed the trial court's authority to impose the nine-year sentence upon probation revocation.
[1] A defendant must affirmatively elect to be sentenced under the sentencing guidelines, and this election must be reflected in the record.
[2] A defendant's inquiry into the potential sentence does not constitute an affirmative election to be sentenced under the guidelines.
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Join FLexlaw to unlock all legal intelligence“We have held that a clear choice to be sentenced under the guidelines must be reflected by the record.”
Establishes the legal standard that an affirmative election to be sentenced under guidelines must be explicit in the record.
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Join FLexlaw to unlock all legal intelligenceLynch was originally sentenced as a youthful offender and placed on probation. His probation was revoked, and he was sentenced to nine years in prison…
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GLICKSTEIN, Judge.
This is an appeal of orders revoking appellant’s probation and sentencing him. We affirm the order of revocation, reverse the sentencing order and remand.
We shall discuss the sentencing order first as we conclude that appellant did not affirmatively elect to be sentenced under the guidelines.
At the subject hearing, counsel for appellant stated:
[PUBLIC DEFENDER]: Well, I am trying to say the max because he is sentenced as a youthful offender. The sentencing guidelines apply and the Court, to my information or my belief, is — even under the new section they have in, he can only get a maximum imposed on youthful offender of six years in prison, or the maximum offense, whichever is less. [Emphasis added.]
The defendant’s only participation at the sentencing hearing was the following:
THE COURT: What do you want to say?
THE DEFENDANT: So I get nine years, right, with credit for the four what I just done did?
THE COURT: Say that again.
[PUBLIC DEFENDER]: Right.
THE DEFENDANT: I be sentenced to nine years in prison with credit for four years that I already just did?
[PUBLIC DEFENDER]: Yes, has to be. In other words, he spent four years in jail, Judge— We have held that a clear choice to be sentenced under the guidelines must be reflected by the record. McClatchie v. State, 482 So. 2d 550 (Pla. 4th DCA 1986). While it is not clear what appellant’s attorney meant by saying “[t]he sentencing guidelines apply,” we agree with appellant that this was a mistaken idea by the apparently newly appointed public defender that the guidelines automatically applied to this case. Additionally, we find the comments from appellant to be merely an inquiry into what his sentence was going to be. Accordingly, it cannot be said that appellant affirmatively elected to be sentenced under the guidelines.
While we have agreed with appellant’s first point, we disagree with his remaining points, the next of which is whether the trial court erred in imposing a nine year sentence after revoking appellant’s term of probation imposed as part of a youthful offender sentence. We conclude it did not.
The trail leads from Clem v. State, 462 So. 2d 1134 (Fla. 4th DCA 1984), to Brooks v. State, 478 So. 2d 1052 (Fla.1985), in resolving this issue against appellant. This trail is amply discussed in Johnson v. State, 482 So. 2d 398 (Fla. 5th DCA 1986). Further, we agree with the analysis in Crosby v. State, 487 So. 2d 416 (Fla. 2d DCA 1986).
As for appellant’s third argument that the trial court initially erred by placing appellant on probation rather than community control, we reject same on the authority of Clem v. State.
GUNTHER and STONE, JJ., concur.
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Poore v. State, 531 So. 2d 161 (Fla. 1988)…BARKETT, Justice. We have for review Poore v. State, 503 So. 2d 1282 (Fla. 5th DCA 1987), based on express and direct conflict with Brooks v. State, 478 So. 2d 1052 (Fla.1985); Hill v. State, 486 So. 2d 1372 (Fla. 1st DCA 1986); Lynch v. State, 491 So. 2d 1169 (Fla. 4th DCA 1986); and Crosby v. State, 487 So. 2d 416 (Fla. 2d DCA 1986). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We have accepted jurisdiction to clarify the law governing split sentences. Petitioner was classified a youthful offen…
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Poore v. State, 503 So. 2d 1282 (Fla. 5th DCA 1987)…incarceration and two years on community control. Had the trial judge been limited to requiring the defendant to serve the balance of the original sentence, this court could not have affirmed the new six-year sentence. Similarly, in Lynch v. State, 491 So. 2d 1169 (Fla. 4th DCA 1986), the trial court imposed a nine year sentence after revoking the appellant’s probation, received as a part of a youthful offender sentence. Although the facts are not clearly stated in the opinion, the appellant must have origina…1 / 2
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State v. Wayne, 531 So. 2d 160 (Fla. 1988)…BARKETT, Justice. We have for review Wayne v. State, 513 So. 2d 689 (Fla. 5th DCA 1987), based on express and direct conflict with Brooks v. State, 478 So. 2d 1052 (Fla.1985); Hill v. State, 486 So. 2d 1372 (Fla. 1st DCA 1986); Lynch v. State, 491 So. 2d 1169 (Fla. 4th DCA 1986); and Crosby v. State, 487 So. 2d 416 (Fla. 2d DCA 1986). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. In the proceedings below, the district court held that a defendant, having already been sentenced once, cannot consti…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Clem v. State, 462 So. 2d 1134 (Fla. 4th DCA 1984)
- Brooks v. State, 478 So. 2d 1052 (Fla. 1985)
- Johnson v. State, 482 So. 2d 398 (Fla. 5th DCA 1985)
- Culver v. Berkenfeld, 487 So. 2d 416 (Fla. 4th DCA 1986)
- Crosby v. State, 487 So. 2d 416 (Fla. 2d DCA 1986)
- McCLATCHIE v. State, 482 So. 2d 550 (Fla. 4th DCA 1986)