JESSE LEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jesse Lee challenges his sentencing under Florida's criminal guidelines after conviction for aggravated battery while on probation for aggravated assault. The court affirmed the trial court's use of probation revocation to increase his sentencing guideline cell but reversed and remanded the sentence for the underlying aggravated assault conviction as exceeding the statutory maximum.
The court held that the automatic increase into the next higher guideline cell based on probation revocation is authorized by Florida Rule of Criminal Procedure 3.701(d)(6) and (14) and does not constitute impermissible double-dipping, as points for legal constraint and probation revocation serve different sentencing functions. However, the nine-year sentence for aggravated assault exceeded the statutory maximum of five years for a third-degree felony and was therefore illegal.
[1] A trial court may increase a defendant's sentence to the next higher cell in the guidelines due to a probation revocation, even if points were already scored for legal co…
[2] The express provisions of Florida Rule of Criminal Procedure 3.701(d)(6) and (14) authorize sentencing enhancements for probation violations.
Previewing 2 of 4 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 was entitled to increase the sentence to the next higher cell because of the revocation of probation on the aggravated assault. Points were properly scored for legal constraint because appellant was on probation when he committed the aggravated battery.”
The court's holding that consideration of probation revocation for guideline cell enhancement does not constitute impermissible double-dipping when points have already been awarded for legal constraint.
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Join FLexlaw to unlock all legal intelligenceLee was initially adjudicated guilty of aggravated assault and placed on probation. While on probation, he committed aggravated battery and was convic…
The full statement of facts, procedural history, and disposition for this case are member content.
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DANAHY, Chief Judge.
In this guidelines case appellant Jesse Lee was adjudicated guilty and placed on probation for aggravated assault. Later he was convicted of aggravated battery. The latter crime formed the basis for a charge that he violated his probation.
The trial court adjudicated Lee guilty of violation of probation and aggravated battery and imposed two concurrent sentences of nine years in prison. The first nine-year sentence was for the primary offense of aggravated battery; the second was for the offense for which Lee was on probation. Because of this, the trial judge bumped appellant up into the next higher cell of the guidelines.
Appellant contends that this automatic increase into the next higher cell because of the probation revocation was illegal “double-dipping” since points had already been added into his score for being under legal constraint at the time of the primary offense. Appellant would have us find that this double-dipping is contrary to the spirit of Hendrix v. State, 475 So. 2d 1218 (Fla.1985).
On the contrary, we believe that it is clearly authorized by the express provisions of Florida Rule of Criminal Procedure 3.701(d)(6) and (14).
The court was entitled to increase the sentence to the next higher cell because of the revocation of probation on the aggravated assault. Points were properly scored for legal constraint because appellant was on probation when he committed the aggravated battery. See Taylor v. State, 485 So. 2d 900 (Fla. 4th DCA 1986).
Therefore, we find no merit in appellant’s first argument and affirm.
On the other hand, we do find merit in appellant’s other issue. We agree with appellant that his second sentence, the concurrent nine-year term for the earlier aggravated assault — a third degree felony — is beyond the statutory maximum for that degree of crime. §§ 784.021, 775.082(3)(d), Fla.Stat. (1985). Accordingly, we vacate this portion of the sentence and remand to the trial court with directions to resentence appellant to a term of not more than five years for aggravated assault.
Conviction affirmed; sentence reversed and remanded for resentencing.
GRIMES and SCHEB, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Pearson v. State, 514 So. 2d 374 (Fla. 2d DCA 1987)…ed and he was sentenced on the crime underlying the probation as well as on the convictions in this case which constituted the probation violation. His scoresheet applicable to all these offenses reflects points for legal restraint. In Lee v. State, 491 So. 2d 1289 (Fla. 2d DCA 1986), we held that a one-cell “bump up” for probation violation in addition to the points on the scoresheet for legal restraint (probation) is permissible under the guidelines in this situation. We have receded from Meadows v. State, 4…
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Cain v. State, 506 So. 2d 1125 (Fla. 1st DCA 1987)…the recommended sentence of any nonstate prison sanction could not be increased to the next higher cell (community control or 12 to 30 months incarceration) without a reason therefor. We subscribe to the opinion of our sister court in Lee v. State, 491 So. 2d 1289 (Fla. 2d DCA 1986), that this procedure is clearly authorized by the express provisions of Rule 3.701(d)(6) and (14), and is not the kind of double-dipping condemned in Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Finally, the total sentence was p…
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Frick v. State, 510 So. 2d 1077 (Fla. 2d DCA 1987)…PER CURIAM. Upon consideration of the instant case, the court has determined to recede from the decision in Meadows v. State, 498 So. 2d 1018 (Fla. 2d DCA 1986), and to follow its decision in Lee v. State, 491 So. 2d 1289 (Fla. 2d DCA 1986). Accordingly, the sentence is affirmed. DANAHY, C.J., and SCHEB, RYDER, CAMPBELL, SCHOONOVER, LEHAN, FRANK and HALL, JJ., concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Taylor v. State, 485 So. 2d 900 (Fla. 4th DCA 1986)