RAYMOND GISSENDANER, 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.
Raymond Gissendaner appeals his sentence of 9½ years for violating community control by issuing another worthless check, arguing the sentence constituted an unauthorized departure from sentencing guidelines. The Florida District Court of Appeal affirms, holding that the violation of community control constituted clear and convincing reasons for departure beyond the one-cell bump-up allowed by rule.
The court affirmed the sentence, holding that violation of community control can justify departure beyond the one-cell bump-up prescribed by rule if the underlying grounds for revocation constitute clear and convincing reasons for departure, and that the seriousness of Gissendaner's violations—committing the same type of offense within five months in direct contravention of an express court order—justified the extent of departure.
[1] A violation of community control, when the violation itself constitutes a criminal offense, can serve as a clear and convincing reason for departing from sentencing guide…
[2] A defendant's conduct in direct contravention of a court's express directive to refrain from maintaining a checking account, after being placed on community control for i…
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“the one-cell departure provided for in that Rule is justified solely by reason of revocation without regard to the underlying grounds and that the Rule does not preclude guidelines departure if the underlying grounds for revocation constitute clear and convincing reasons for departure beyond the next cell”
Establishes the legal standard allowing departure beyond the one-cell bump-up when underlying grounds for revocation are sufficiently serious
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn 1984, Gissendaner pleaded nolo contendere to fifteen felony counts of issuing worthless checks. The trial court withheld adjudication and placed hi…
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 Issuing Worthless Checks cases and more on FLexlaw
PER CURIAM.
Appellee’s motion for rehearing is granted, the Court’s opinion filed December 19, 1986, is withdrawn and the following is substituted therefor. The defendant appeals from his sentences on multiple offenses contending that the sentences constituted an unauthorized departure from the guidelines. We affirm.
In 1984 appellant pled nolo contendere to fifteen felony counts of issuing worthless checks. The trial court withheld adjudication of guilt and placed appellant on community control for a period of two years. Among the conditions of appellant’s community control were that he live and remain at liberty without violating the law and that he not maintain a checking account in any manner. Approximately five months after being placed on community control, appellant violated the above conditions by passing another worthless check. He was subsequently charged with a violation of community control in the above respects. He entered a plea of nolo contendere to the new worthless check charge and admitted the violations of community control.
The trial court revoked his community control and sentenced appellant to various terms of incarceration totalling 9V2 years. The sentencing guidelines called for a 2½ to 3½ year sentence. As justification for departing from the guidelines, the court gave the following written reasons:
The defendant was previously placed on community control for fifteen counts of issuing worthless checks by this court’s order of December 14, 1984. Thereafter, on the 29th day of July, 1985 he was adjudged guilty for [sic] the offense of passing a worthless check in the amount of $15.00. Said adjudication of guilt is a violation of his community control.
The court deems the violation of community control a valid reason for departing from the recommended sentencing guidelines and it is so ordered.
Appellant contends that inasmuch as Fla. R.Cr.P. 3.701(d)(14) contemplates only a one cell “bump up” for a violation of probation or community control, a total sentence of more than 4V2 years (the maximum penalty in the next higher cell) was not justified. However, the Supreme Court recently recognized in State v. Pentaude, 500 So. 2d 526 (Fla.1987), that the one-cell departure provided for in that Rule is justified solely by reason of revocation without regard to the underlying grounds and that the Rule does not preclude guidelines departure if the underlying grounds for revocation constitute clear and convincing reasons for departure beyond the next cell.
We are of the view that the underlying violations of community control were sufficiently serious to justify the trial court’s departure. First, the violation constituted a criminal offense. Second, the offense was exactly the same kind of offense for which the defendant had, just five months earlier, been placed on community control and the defendant’s conduct was in direct contravention of the court’s express directive to refrain from even maintaining a checking account.
We also reject appellant’s contention that the trial court’s extent of departure was an abuse of judicial discretion.
AFFIRMED.
JOANOS, THOMPSON and NIMMONS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Tuthill v. State, 518 So. 2d 1300 (Fla. 3d DCA 1987)…e, 505 So. 2d 1113 (Fla. 2d DCA 1987) (where defendant is convicted of second crime while on probation, and second crime is of same type as first crime for which he was put on probation, trial court may depart from guidelines); Gissendaner v. State, 504 So. 2d 474 (Fla. 1st DCA 1987) (where defendant who pled nolo conten-dere to offense which was same kind of offense for which the defendant had been placed on community control, trial court’s departure from the guidelines is justified). Thus, in the absence of…1 / 2
-
Yarberry v. State, 510 So. 2d 1117 (Fla. 1st DCA 1987)…Fla. 2d DCA 1985), that repeated violations of probation alone may constitute sufficient grounds to support a departure sentence and that reasons relating to a defendant’s resistance to rehabilitation may justify departure. In Gissen-daner v. State, 504 So. 2d 474 (Fla. 1st DCA 1987), the court, relying in part on Pen-taude, upheld a departure of more than one cell based on a violation of community control, noting especially that the defend [*1119] ant’s conduct in violating community control was in direct co…
Authorities Cited
- State v. Pentaude, 500 So. 2d 526 (Fla. 1987)