ARTHUR LEE HENRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Arthur Lee Henry appeals his probation violation sentences, challenging the trial court's imposition of two consecutive five-year prison terms without compliance with Florida's sentencing guidelines. The court reverses and remands for resentencing, holding that the trial court must provide written, clear and convincing reasons for any departure from the guidelines presumptive sentence.
The trial court erred by failing to file a written statement with clear and convincing reasons for departing from the guidelines presumptive sentence. Additionally, Henry's waiver of guidelines sentencing rights cannot constitute a valid reason for departure, and any purported agreement allowing departure from a future unknown presumptive sentence was invalid as it would frustrate guidelines sentencing.
[1] A trial court must enter a written statement setting forth clear and convincing reasons for departing from a presumptive sentencing guidelines sentence.
[2] A defendant's waiver of the right to be sentenced under the guidelines cannot constitute a clear and convincing reason for departure.
Previewing 2 of 5 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 trial court erred in sentencing him outside the guidelines without entering a written statement setting forth clear and convincing reasons for departure”
Establishes the core holding that sentencing departures from guidelines must be supported by written, clear and convincing reasons
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHenry originally pleaded guilty to burglary and grand theft and was placed on probation under a condition that he waive his right to be sentenced unde…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Sentencing Guidelines cases and more on FLexlaw
SCHOONOVER, Judge.
Appellant, Arthur Lee Henry, challenges the sentences imposed upon him after the trial court found him guilty of violating the terms and conditions of his probation. We reverse and remand for resentencing.
Appellant was originally placed on probation after pleading guilty to burglary in violation of section 810.02(3), Florida Statutes (1983) and grand theft in violation of section 812.014(2)(b)(l), Florida Statutes (1983). The guidelines scoresheet indicated a recommended sentence of any nonstate prison sanction. The court, however, prior to placing appellant on probation required him, in exchange for not being incarcerated at that time, to waive his right to be sentenced under the guidelines in the event he violated his probation. Appellant was then placed on probation for two consecutive five year terms.
Appellant was subsequently charged with, and found guilty of, violating his probation. An updated guidelines seoresheet, which included a one cell enhancement for probation violation, indicated a presumptive sentence of community control or twelve to thirty months incarceration. The court, after stating that appellant had waived his right to be sentenced under the guidelines by violating his probation and giving other reasons for departure, revoked appellant’s probation, adjudicated him guilty and sentenced him to serve two consecutive five year prison terms. The court did not file any written statement setting forth the reasons it had departed from the guidelines presumptive sentence. This appeal timely followed.
We agree with appellant’s contention that the trial court erred in sentencing him outside the guidelines without entering a written statement setting forth clear and convincing reasons for departure. State v. Jackson, 478 So. 2d 1054 (Fla.1985). We, accordingly, reverse and remand for resentencing. At that time, if the court deviates from the presumptive sentence, it must set forth in writing clear and convincing reasons for doing so.
In resentencing appellant, the court should be aware that appellant’s waiver of his right to be sentenced under the guidelines cannot constitute a clear and convincing reason for departure. Guidelines sentencing cannot be waived. If appellant’s waiver was intended to be an agreement to allow the court to depart from the appellant’s presumptive sentence, rather than a waiver of guidelines sentencing, it was still invalid. We cannot approve an agreement which could frustrate guidelines sentencing. In this case, unlike the normal plea bargain, appellant, in exchange for receiving probation without incarceration, a sentence already indicated by the guidelines seoresheet, was required to agree to allow the court to depart to an unspecified extent from a future unknown presumptive sentence if he violated the terms of his probation. See Green v. State, 460 So. 2d 378 (Fla. 2d DCA 1984); Bell v. State, 453 So. 2d 478 (Fla. 2d DCA 1984).
We also note that the judgment and sentence form entered by the trial court indicates appellant’s burglary charge was a second degree felony. A review of the entire record indicates that appellant pled guilty to and was sentenced for a third degree felony. Upon remand, the judgment should be corrected to show appellant was adjudicated guilty of the third degree felony of burglary. Perez v. State, 498 So. 2d 1005 (Fla. 2d DCA 1986).
We affirm the judgment and sentence in all other respects.
Reversed and remanded.
GRIMES, A.C.J., and CAMPBELL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Hosmer v. State, 523 So. 2d 184 (Fla. 1st DCA 1988)…though a plea bargain may provide a valid reason for departure with respect to the initial disposition, it cannot be viewed as an implicit waiver of the guidelines with respect to sentencing subsequent to the initial disposition. See Henry v. State, 498 So. 2d 1006 (Fla. 2d DCA 1986). Therefore, we conclude the trial court erred in departing two cells upward for violation of community control, without [*187] giving clear and convincing reasons for the departure. “Violation of community control justifies a one…
-
State v. McCARTHY, 502 So. 2d 955 (Fla. 2d DCA 1987)…to an indeterminate extent, save as it would be limited by the statutory maximum, should he in the future violate the terms of his probation. We will not approve an agreement that frustrates sentencing consistent with the guidelines. Henry v. State, 498 So. 2d 1006 (Fla. 2d DCA 1986). “A defendant cannot by agreement confer on the court the authority to impose an illegal sentence. If a departure is not supported by clear and convincing reasons, the mere fact that a defendant agrees to it does not make it a leg…
-
Tirado v. State, 583 So. 2d 730 (Fla. 3d DCA 1991)…ial court erred in departing from the sentencing guidelines as its stated reason for doing so was entirely invalid. See Shull v. Dugger, 515 So. 2d 748, 749 (Fla.1987); Williams v. State, 16 F.L.W. D1665 (Fla. 1st DCA June 18, 1991); Henry v. State, 498 So. 2d 1006, 1007 (Fla. 2d DCA 1986); [*732] Holley v. State, 483 So. 2d 854, 855 (Fla. 5th DCA 1986). We reverse the sentences under review and remand the cause to the trial court with directions to resentence the defendants within the sentencing guidelines i…
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
- State v. Jackson, 478 So. 2d 1054 (Fla. 1985)
- Bell v. State, 453 So. 2d 478 (Fla. 2d DCA 1984)
- Green v. State, 460 So. 2d 378 (Fla. 2d DCA 1984)
- Perez v. State, 498 So. 2d 1005 (Fla. 2d DCA 1986)