MICHAEL ALLEN PENTAUDE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Pentaude appealed his five-year prison sentence imposed after violating probation conditions on a grand theft conviction. The court affirmed the sentence, holding that while a mere probation violation cannot justify departure from sentencing guidelines, the underlying reasons for the violations—if sufficiently egregious—may constitute proper grounds for departure.
The court held that while the mere fact of probation violation cannot justify departure more than one cell, the underlying reasons for violation—if sufficiently egregious and not merely minor infractions—can support such departure. The seven probation violations in this case were sufficiently egregious to justify the departure.
[1] A trial court may depart from sentencing guidelines when the underlying reasons for a probation violation are sufficiently egregious, not merely for the fact of the viola…
[2] An increase of more than one cell in a sentencing guideline is invalid if based solely on the fact that a defendant violated probation.
Previewing 2 of 3 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“Where a trial judge finds that the underlying reasons for violation of probation (as opposed to the mere fact of violation) are more than a minor infraction and are sufficiently egregious, he is entitled to depart from the presumptive guidelines range and impose an appropriate sentence within the statutory limit.”
Establishes the key distinction between bare probation violation and underlying reasons for violation as grounds for sentencing departure.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePentaude originally pleaded guilty to grand theft on January 31, 1984, and received five years probation. He violated seven probation conditions, prom…
The full statement of facts, procedural history, and disposition for this case are member content.
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SHIVERS, Judge.
The appellant in this case, Michael Allen Pentaude, originally pled guilty to grand theft on January 31, 1984, and was sentenced to five years probation. After appellant violated seven of the conditions of his probation, the trial court imposed a sentence of five years incarceration despite a recommended guideline sentence of any nonstate prison sanction. On Pentaude’s first appeal to this court, we reversed the sentence and remanded for resentencing on the basis that the trial court failed to provide written reasons for departure from the guidelines. Pentaude v. State, 478 So. 2d 1147 (Fla. 1st DCA 1985). The trial court again sentenced appellant to five years imprisonment but this time gave eight written reasons for departure from the guidelines. Reasons # 1-7 specified the conditions of probation violated by appellant while Reason # 8 referred to Pen-taude’s subsequent conviction for grand theft.
Pentaude now argues on appeal that since Fla.R.Crim.P. 3.701(d)(14) provides that probation violation may be used to increase a sentence to the next higher cell, the mere fact that a defendant has violated probation may not constitute a proper ground for departure. We agree with appellant that an increase of more than one cell is invalid when based solely on the fact that a defendant has violated probation. Stewart v. State, 480 So. 2d 1387 (Fla. 1st DCA 1986); Monti v. State, 480 So. 2d 223 (Fla. 5th DCA 1985). However, as this court previously held in Pentaude, 478 So. 2d at 1149, “[w]here a trial judge finds that the underlying reasons for violation of probation (as opposed to the mere fact of violation) are more than a minor infraction and are sufficiently egregious, he is entitled to depart from the presumptive guidelines range and impose an appropriate sentence within the statutory limit.” We find the seven reasons for violation of probation in this case to be sufficiently egregious to support the trial court’s departure more than one cell.
Since neither the technical probation violations nor the substantive offense were factored into the sentencing guidelines scoresheet, reversal is not required under State v. Mischler, 488 So. 2d 523 (Fla.1986), as argued by appellant.
Accordingly, the sentence imposed by the trial court is
AFFIRMED.
MILLS and JOANOS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Mischler, 488 So. 2d 523 (Fla. 1986)
- Miranda v. Hance Constr. Co., 478 So. 2d 1147 (Fla. 1st DCA 1985)
- Monti v. State, 480 So. 2d 223 (Fla. 5th DCA 1985)
- Donnell Stewart v. State, 480 So. 2d 1387 (Fla. 1st DCA 1986)