KEN NELSON A/K/A KEVIN LOWERY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a separate guidelines scoresheet and consecutive sentencing were permissible for a probation violation case, even if another case was pending.
[1] A separate guidelines "scoresheet" may be used for a probation violation hearing when the defendant has already been sentenced in another pending case.
[2] A defendant is entitled to the benefits of a uniform scoresheet and contemporaneous concurrent sentencing only for cases actually pending before a judge in that circuit f…
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Join FLexlaw to unlock all legal intelligenceAppellant was charged with violating probation in two cases. The first case was sentenced before the probation violation hearing in the second case.…
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STONE, Judge.
Appellant was charged with violating his probation in two separate cases assigned to different judges in the same circuit. The sentencing and judgment were completed in the first case prior to the probation violation final hearing under review. We find no error in the court’s use of a separate guidelines “scoresheet” in this later case, and in the sentencing of the defendant independent of, and consecutive to, his sentence in the earlier case.
Rule 3.701(d)(1) of the Florida Rules of Criminal Procedure provides:
1. One guideline scoresheet shall be prepared for each defendant covering all offenses pending before the court for sentencing.
In Gallagher v. State, 476 So. 2d 754 (Fla. 5th DCA 1985), the trial judge had refused to consolidate three cases for sentencing after guilty pleas had been entered in all three and the Fifth District Court of Appeal reversed. However, the defendant had earlier moved for consolidation after entry of one guilty plea, but before entry of the two remaining pleas. Stating that the trial court correctly denied this earlier motion, the court in Gallagher commented:
[Njeither a guilty (or nolo contendere) plea nor a conviction had been obtained in the other cases and therefore they were not pending before any court for sentencing.
476 So. 2d at 755.
A defendant is entitled to the benefits of a uniform scoresheet and contemporaneous concurrent sentencing only for those of his cases actually pending before a judge in that circuit for sentencing. The fact that another case is pending in which the defendant has entered a not guilty plea or denial, and is awaiting trial, or a final hearing, is insufficient to constitute another offense pending for sentencing.
In addition, we find no error with respect to appellant’s contentions that the trial court erred in considering the defendant’s silence in the face of his invocation of a Fifth Amendment privilege. See State v. Mangam, 343 So. 2d 599 (Fla.1977); Hudson v. State, 489 So. 2d 808 (Fla. 4th DCA 1986); Watson v. State, 388 So. 2d 15 (Fla. 4th DCA 1980).
AFFIRMED.
GLICKSTEIN and DELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Clark v. State, 519 So. 2d 1095 (Fla. 1st DCA 1988)…d to mean that a guilty plea, nolo plea, or guilty verdict has been obtained for the offense, citing Gallagher v. State, 476 So. 2d 754 (Fla. 5th DCA 1985).4 It asserts [*1097] that an analogous sentencing proceeding was approved in Nelson v. State, 498 So. 2d 553 (Fla. 4th DCA 1986).5 The State contends that BR-7 had not met the Gallagher definition of “pending” at the time Judge Yawn sentenced appellant in BR-8, so that the offenses in BR-7 could not be included in his scoresheet, and that since BR-8 had al…
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Mincey v. State, 525 So. 2d 465 (Fla. 1st DCA 1988)…sentencing at the same time, and, therefore, one scoresheet should have been used. See Gallagher v. State, 476 So. 2d 754 (Fla. 5th 1985) (all offenses pending at same time where guilty pleas had been entered before sentencing); cf. Nelson v. State, 498 So. 2d 553 (Fla. 4th 1986) (all offenses not pending at same time where probation violation hearing had not been held), and Clark v. State, 519 So. 2d 1095 (Fla. 1st DCA 1988) (all offenses not pending at same time where in one case jury verdict had not been e…
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Stokes v. State, 512 So. 2d 290 (Fla. 1st DCA 1987)…y case. In so doing, he erroneously departed from the guidelines without providing written reasons. See Carter v. State, 483 So. 2d 740, 741 (Fla. 5th DCA 1986); Gissenger v. State, 481 So. 2d 1269, 1270 (Fla. 5th DCA 1986); compare Nelson v. State, 498 So. 2d 553 (Fla. 4th DCA 1986). REVERSED. ERVIN, J., concurs. BOOTH, J., dissents with written opinion.…
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
- Gallagher v. State, 476 So. 2d 754 (Fla. 5th DCA 1985)
- Watson v. State, 388 So. 2d 15 (Fla. 4th DCA 1980)
- State v. Mangam, 343 So. 2d 599 (Fla. 1977)
- Schofield v. Franceska M. Schofield, 489 So. 2d 808 (Fla. 3d DCA 1986)