CLEMON LEWIS, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Clemon Lewis Jr. appealed his sentence imposed after probation revocation, arguing it constituted an impermissible departure from sentencing guidelines lacking clear and convincing reasons. The appellate court agreed and vacated the sentence, finding the trial court relied on invalid departure reasons and remanded for resentencing within guidelines.
The sentence was an impermissible departure. The three reasons cited by the trial court—inability to complete probation, danger to society, and commission of a violent crime while on probation—were all invalid under controlling law. The sentence is vacated and remanded for resentencing within guidelines with consideration of an allowable one-cell bump-up for probation revocation.
[1] A sentence imposed after revocation of probation may not be based upon reasons that are not clear and convincing.
[2] An inability to successfully complete probation, without more, is not a clear and convincing reason for departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“The trial court sentenced appellant to three concurrent five-year terms of probation for crimes to which he pleaded guilty.”
Establishes the original sentence and that Lewis was on probation when violations occurred
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Join FLexlaw to unlock all legal intelligenceLewis pleaded guilty to three crimes and was sentenced to concurrent five-year probation terms. During probation, he violated conditions by failing to…
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DANAHY, Chief Judge.
Appellant contends that his sentence, imposed after revocation of probation, is an impermissible departure based upon reasons that are not clear and convincing. We agree and vacate his sentence. We remand for resentencing within the guidelines range with an allowable one cell bump-up for a sentence imposed after probation revocation. Fla.R.Crim.P. 3.701(d)(14).
The trial court sentenced appellant to three concurrent five-year terms of probation for crimes to which he pleaded guilty. During the term of probation, affidavits of violation of probation were filed. At the revocation of probation hearing, the court found that appellant had failed to file monthly written reports, failed to call the Community Control office daily and report as instructed, left his residence without approval, and failed to pay court costs. The court further stated that “evidence satisfied the conscience of the court that [appellant] was involved in a robbery.” The recommended guidelines range was three to three and one-half years imprisonment, but the court sentenced him to two concurrent terms of fifteen years and a concurrent term of five years for the three crimes underlying the probation. The court s written reasons for departure were the following:
The Defendant has demonstrated an inability to successfully complete either probation or community control.
The Defendant is a danger to society.
The Defendant has committed a violent crime while on probation for the commission of a violent crime.
As to the first reason, there is no evidence that appellant has had repeated probation violations. Neither does the record show that appellant had been on probation previously. This reason is invalid based on Royal v. State, 508 So. 2d 1313 (Fla. 2d DCA 1987). Although State v. Pentaude, 500 So. 2d 526 (Fla.1987), allows departure based upon the number of conditions violated, the character of the violation, and other factors concerning the probation violations not taken into account by the guidelines, it is clear that the court did not consider any other factor except those listed which do not fall into a permissible category under Pentaude.
The second reason, “danger to society,” either standing alone or when based upon prior convictions, is not a valid reason for departure. See Williams v. State, 492 So. 2d 1308 (Fla.1986).
Concerning the third reason cited by the court to support departure, appellant was neither convicted of the alleged robbery nor did he admit this violation of probation. Therefore, this reason falls into that prohibited category of reasons based upon offenses for which no conviction has been obtained. State v. Mischler, 488 So. 2d 523 (Fla.1986); Fla.R.Crim.P. 3.701(d)(ll).
Sentence vacated and remanded for re-sentencing according to the guidelines with consideration of Florida Rule of Criminal Procedure 3.701(d)(14).
RYDER and FRANK, JJ., concur.
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Bernhine W. Young v. State, 519 So. 2d 719 (Fla. 5th DCA 1988)…is 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-taude, as observed by the majority opinion in Tuthill, t…
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Lambert v. State, 517 So. 2d 133 (Fla. 4th DCA 1987)…reatened to kill the victims. The defendant argues that the foregoing reasons expressed by the trial judge involve offenses for which he had not been convicted prior to the sentencing and cannot be used as reasons for departure. See Lewis v. State, 510 So. 2d 1089 (Fla. 2d DCA 1987), and Tuthill v. State, 518 So. 2d 1300 (Fla. 3d DCA 1987). However, the state cites State v. Pentaude, 500 So. 2d 526 (Fla.1987) in which the Supreme Court held, in response to a certified question, that a person found guilty of v…
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Tuthill v. State, 518 So. 2d 1300 (Fla. 3d DCA 1987)…452 So. 2d 955 (Fla. 2d DCA 1984). . A line of second 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 beyon…
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. Mischler, 488 So. 2d 523 (Fla. 1986)
- Williams v. State, 492 So. 2d 1308 (Fla. 1986)
- State v. Pentaude, 500 So. 2d 526 (Fla. 1987)
- Royal v. State, 508 So. 2d 1313 (Fla. 2d DCA 1987)