MARK C. WILSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mark Wilson appeals his sentence imposed after revocation of probation and community control, challenging the trial court's departure from the presumptive guidelines sentence. The appellate court reverses because the reasons given for the departure—Wilson's inability to complete probation/community control and an arrest (not conviction) for armed robbery—are invalid under Florida sentencing guidelines.
The court's departure from the guidelines was improper and reversible error. The inability to complete probation or community control, standing alone, does not justify a departure beyond one cell enhancement. Additionally, factors relating to arrests without conviction cannot be used as reasons for departure. The case is reversed and remanded for resentencing within the guidelines.
[1] A trial court may exceed the presumptive guidelines sentence by one cell upon violation of probation or community control without providing written reasons.
[2] Departure from a presumptive guidelines sentence beyond one cell requires clear and convincing reasons, focusing on the egregiousness of the underlying reasons for violat…
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Join FLexlaw to unlock all legal intelligence“a guidelines sentence may be exceeded beyond one cell only when the underlying reasons for violation, as opposed to the violation itself, are sufficiently egregious”
Establishes the legal standard for departing from guidelines sentences beyond the one-cell enhancement in probation violation cases
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Join FLexlaw to unlock all legal intelligenceWilson pled guilty to burglary and second degree grand theft and was placed on eighteen months probation. Three months later, he pled guilty to additi…
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PER CURIAM.
Mark Wilson appeals the sentence imposed following revocation of probation and community control. He contends that the court erred in departing from the presumptive guidelines sentence. Because we find the reasons for departure given by the trial court invalid, we reverse.
Wilson pled guilty to burglary and second degree grand theft and was placed on eighteen months probation. Three months later, Wilson was charged with burglary of a dwelling and second degree grand theft. He again pled guilty and the court placed him on two years community control to run concurrently with the probation.
Wilson was subsequently charged with violating probation and community control by failing to pay costs of supervision, moving without permission and being arrested for armed robbery. He appeared at a revocation hearing on January 16, 1986, and admitted having violated probation and community control. The recommended guidelines sentence, including the one cell enhancement for violation of probation, was twelve to thirty months in prison. The court imposed five years on each count in the first information, to run concurrently with sentences of fifteen and five years, respectively, for the charges in the second information.
The trial court set out two written reasons for departure and we shall address each. The court first noted that “the defendant has demonstrated an inability to successfully complete either probation or community control.” This is an invalid reason. When a defendant has violated probation or community control, the judge may exceed the recommended sentence by one cell without giving written reasons. Fla.R. Crim.P. 3.701(d)(14). Additional departure, however, must be supported by clear and convincing reasons. State v. Pentaude, 500 So. 2d 526 (Fla.1987). In Pentaude, the supreme court recently held that a guidelines sentence may be exceeded beyond one cell only when the underlying reasons for violation, as opposed to the violation itself, are sufficiently egregious. The violations in this case, i.e., failure to pay cost of supervision and moving without permission, are not sufficiently egregious to justify a seven cell departure.
The trial court also found as a reason for departure that Wilson had committed an armed robbery while on community control. At the time of sentencing Wilson was charged with but not convicted of this offense. Reasons for departure cannot include factors relating to prior arrests for which there have been no conviction. Fla. R.Crim.P. 3.701(d)(ll). Use of such reasons constitutes reversible error. Weems v. State, 469 So. 2d 128 (Fla.1985); Bass v. State, 496 So. 2d 880 (Fla. 2d DCA 1986). We note that the court cited Addison v. State, 452 So. 2d 955 (Fla. 2d DCA 1984), as authority for this reason; however, it appears that the enactment of Rule 3.701(d)(ll) has superseded our decision in that early guidelines case.
For the reasons given, we reverse and remand for resentencing within the guidelines.
RYDER, A.C.J., and HALL and THREADGILL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bernhine W. Young v. State, 519 So. 2d 719 (Fla. 5th DCA 1988)…in separate convictions. The appellate courts of this state have split on the question, with two courts holding that departure is not warranted in the absence of conviction. See Tuthill v. State, 518 So. 2d 1300 (Fla. 3d DCA 1987); Wilson v. State, 510 So. 2d 1088 (Fla. 2d DCA 1987); Lewis v. State, 510 So. 2d 1089 (Fla. 2d DCA 1987). The Fourth District has allowed the use of such offenses without a conviction. Lambert v. State, 517 So. 2d 133 (Fla. 4th DCA 1987). It is true that under the facts in Pen-taud…
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Eldridge v. State, 531 So. 2d 741 (Fla. 5th DCA 1988)…language, conflict has arisen in the district courts of appeal over the propriety of departing from the guidelines based on criminal conduct which forms the basis for a revocation of probation but does not result in conviction. In Wilson v. State, 510 So. 2d 1088 (Fla. 2d DCA 1987), one reason given for a departure sentence imposed on a prior offense as to which the defendant had been placed on community control, was that the [*744] trial court had found he had committed a subsequent offense (armed robbery)…1 / 2
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Hamilton v. State, 533 So. 2d 926 (Fla. 5th DCA 1988)…468 So. 2d 255 (Fla. 2d DCA 1985), rev. denied, 472 So. 2d 1181 (Fla.1985); Tuthill v. State, 518 So. 2d 1300 (Fla. 3d DCA 1987), rev. granted, Case No. 72,096 (Fla. May 24, 1988); Lewis v. State, 510 So. 2d 1089 (Fla. 2d DCA 1987); Wilson v. State, 510 So. 2d 1088 (Fla. 2d DCA 1987); Booker v. State, 514 So. 2d 1079 (Fla.1987), and State v. Pentaude, 500 So. 2d 526 (Fla. 1987), to the effect and result that a “subsequent offense” should not be used to justify a departure sentence in any event unless the defen…
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
- Weems v. State, 469 So. 2d 128 (Fla. 1985)
- State v. Pentaude, 500 So. 2d 526 (Fla. 1987)
- Glynn Addison, Jr. v. State, 452 So. 2d 955 (Fla. 2d DCA 1984)
- Bass v. State, 496 So. 2d 880 (Fla. 2d DCA 1986)