TONY D. ROYAL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the written order revoking community control must conform to the oral pronouncement, and the reasons for departure from sentencing guidelines were improper.
Appellant's community control was revoked based on a written order that did not match the oral pronouncement, and the trial court departed from senten…
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THREADGILL, Judge.
Appellant contends that the written order revoking his community control does not conform with the oral pronouncement at sentencing. We have examined the record and agree. We therefore remand with instructions to amend the written order of revocation of community control to show a violation of condition (11) (remain confined at approved residence) only. Sampson v. State, 375 So. 2d 325 (Fla. 2d DCA 1979). We find that a violation of condition (11) under the facts and circumstances of this case to be a substantial violation that justifies revocation.
Appellant also challenges the trial court’s departure from the sentencing guidelines. The recommended guidelines sentence in this case was community control or twelve to thirty months in prison. However, the court sentenced appellant to fifteen years in prison and submitted written reasons for departure.
The first reason for departure was that appellant had committed another offense (grand theft) while on “probation”. This is an improper reason because no conviction had yet been obtained for that offense. See Fla.R.Crim.P. 3.701(d)(ll) and Hudson v. State, 504 So. 2d 2 (Fla. 2d DCA 1986).
The second reason given by the court for departure was that appellant had demonstrated an inability to successfully complete community control. This is an invalid reason for departure, although it is cause for one cell enhancement not requiring written reasons. See Fla.R.Crim.P. 3.701(d)(14) and Isgette v. State, 494 So. 2d 534 (Fla. 4th DCA 1986).
Accordingly, we remand the order of revocation of community control for correction as specified, vacate the sentence and remand for resentencing within the guidelines.
CAMPBELL, A.C.J., and HALL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)…l court in support of departure are found invalid, resentencing following remand must be within the presumptive guidelines sentence. Williams v. State, 492 So. 2d 1308 (Fla.1986); Foister v. State, 510 So. 2d 371 (Fla. 1st DCA 1987); Royal v. State, 508 So. 2d 1313 (Fla. 2d DCA 1987); Carter v. State; 485 So. 2d 1292 (Fla. 4th DCA), rev. denied, 494 So. 2d 1149 (Fla.1986). Some of our district courts, however, have distinguished the situation where the only reason given for departure was valid at the time und…
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Porras v. State, 651 So. 2d 183 (Fla. 3d DCA 1995)…he defendant was away from his residence without permission, contrary to the terms of the community control order. This is a sufficient basis for the revocation of community control. Dietz v. State, 534 So. 2d 808 (Fla. 2d DCA 1988); Royal v. State, 508 So. 2d 1313 (Fla. 2d DCA 1987). Whether, under the circumstances, the defendant’s violation should have been excused was a matter for the discretion of the trial court. The revocation of community control is affirmed. Affirmed in part, reversed in part, and r…
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Tuthill v. State, 518 So. 2d 1300 (Fla. 3d DCA 1987)…ond district decisions indeed holds that a probation violation based on the commission of a crime may not support a departure if the defendant has not been convicted of the offense. Lewis v. State, 510 So. 2d 1089 (Fla. 2d DCA 1987); Royal v. State, 508 So. 2d 1313 (Fla. 2d DCA 1987); Hudson v. State, 504 So. 2d 2 (Fla. 2d DCA 1986); Mack v. State, 489 So. 2d 205 (Fla. 2d DCA 1986). None of these cases, however, is buttressed by any supporting reasoning beyond an announcement of the conclusion; the only case r…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sterling Sampson v. State, 375 So. 2d 325 (Fla. 2d DCA 1979)
- Hudson v. State, 504 So. 2d 2 (Fla. 2d DCA 1986)
- Isgette v. State, 494 So. 2d 534 (Fla. 4th DCA 1986)