JOHN RIGGINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in sentencing the appellant outside the sentencing guidelines without his affirmative election, as required for offenses committed before October 1, 1983.
Appellant was placed on probation for dealing in stolen property and later found to have violated probation. He was sentenced to fifteen years in pris…
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SCHOONOVER, Acting Chief Judge.
Appellant, John Riggins, appeals from a judgment and sentence imposed upon him for violating the terms and conditions of his probation. We agree that the trial court erred in sentencing appellant and, accordingly, remand for resentencing.
On December 18, 1981, appellant was placed on probation for a period of five years for the offense of dealing in stolen property, a violation of section 812.019(1), Florida Statutes (1981). In August of 1984, appellant was charged with violating the terms and conditions of his probation, and on November 21, 1984, he was found guilty of violating probation. On the same day, appellant was adjudicated guilty and was sentenced outside of the sentencing guidelines to serve fifteen years in state prison. An order setting forth the court’s reasons for departing from the guidelines was filed shortly thereafter. This appeal timely followed.
Since the underlying offense in this case occurred prior to October 1, 1983, the sentencing guidelines could only be applied to appellant’s sentence if he affirmatively selected to be sentenced under them. In Re Rules of Criminal Procedure, 439 So. 2d 848 (Fla.1983). An election to be sentenced under the guidelines must be clear and unequivocal. Bigbee v. State, 476 So. 2d 320 (Fla. 2d DCA 1985); Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985); Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984). As the record fails to demonstrate that appellant made the requisite election, we must reverse and remand for resentencing. At resentencing, appellant may either affirmatively elect to be sentenced under the guidelines, or be resentenced according to the law in effect prior to the adoption of the guidelines.
In view of our disposition, it is not necessary to consider the validity of the trial court’s reasons for departing from the guidelines.
Reversed and remanded for resentencing.
HALL and SANDERLIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Davidson v. State, 506 So. 2d 43 (Fla. 2d DCA 1987)…ses in those cases were committed prior to October 1, 1983, and appellant failed to affirmatively elect to be sentenced under the guidelines. See In Re Rules of Criminal Procedure (Sentencing Guidelines), 439 So. 2d 848 (Fla.1983); Riggins v. State, 495 So. 2d 227 (Fla. 2d DCA 1986). We, accordingly, reverse the judgment and sentence in case number 82-06855 and strike all references to that case in the trial court’s other orders. In all other respects, we affirm the judgments and sentences in case numbers 85…
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)
- Cahill v. State, 467 So. 2d 366 (Fla. 2d DCA 1985)
- Bigbee v. State, 476 So. 2d 320 (Fla. 2d DCA 1985)