HENRY SALDANA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Henry Saldana was convicted of theft of a motor vehicle, leading to revocation of his two-year probation and an upward departure sentencing on his original burglary charge. The appellate court reversed the sentence, finding that the trial court's grounds for departing six cells upward from sentencing guidelines—the probation violation and the defendant's demeanor—were insufficient to justify a departure beyond the single-cell increase automatically permitted by rule.
The appellate court held that neither ground was sufficient to support a departure beyond the single-cell increase automatically authorized by rule. A mere violation of probation by committing a non-violent third degree felony approximately five months after probation began constitutes only an ordinary violation, and the trial court's subjective assessment of the defendant's demeanor does not independently justify an upward departure.
[1] A violation of probation, without more, does not justify an upward departure from sentencing guidelines beyond the one-cell increase automatically authorized for probatio…
[2] A defendant's demeanor observed by the trial court is insufficient, on its own, to support an upward departure from sentencing guidelines.
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 mere fact that the appellant violated a two-year probation by committing a non-violent third degree felony some five months after the term began involves nothing more than an "ordinary" violation which does not justify any departure beyond the one cell increase automatically authorized by Florida Rule of Criminal Procedure 3.701(d)(14)”
Establishes the court's holding that probation violations of this nature do not justify upward departures beyond the mandatory single-cell increase.
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Join FLexlaw to unlock all legal intelligenceSaldana was on two-year probation when, approximately five months into the probation term, he committed theft of a motor vehicle, a non-violent third …
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SCHWARTZ, Chief Judge.
Finding Saldana guilty of theft of a motor vehicle, the trial court revoked the defendant’s two year probation and sentenced him on the original burglary charge to a six-cell upward deviation from the guidelines. The reasons for the sentence were stated as follows:
Advance 6 cells — Def. was on Probation Less than 5 months before he stole the car — Observing the demeanor of the defendant indicates a complete inability to abide by the Law.
We find neither ground sufficient to support the departure.
1. It seems clear that the mere fact that the appellant violated a two-year probation by committing a non-violent third degree felony some five months after the term began involves nothing more than an “ordinary” violation which does not justify any departure beyond the one cell increase automatically authorized by Florida Rule of Criminal Procedure 3.701(d)(14). See State v. Pentaude, 500 So. 2d 526 (Fla.1987); Mackey v. State, 495 So. 2d 916 (Fla. 4th DCA 1986); compare Walker v. State, 496 So. 2d 220 (Fla. 3d DCA 1986) (violation involving threats to victim 74 days after commencement of term); Spivey v. State, 481 So. 2d 100 (Fla. 3d DCA 1986) (violation within one month of probation order); Williams v. State, 462 So. 2d 36 (Fla. 1st DCA 1984) (threats to assault victim’s father), pet. for review denied, 471 So. 2d 44 (Fla.1985); Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984) (repetition of same offense within one month of probation).
2. The trial court’s adverse opinion of the defendant’s demeanor as indicating his alleged inability to comply with the law similarly does not support an upward departure. See Scott v. State, 488 So. 2d 146 (Fla. 3d DCA 1986); Shelton v. State, 478 So. 2d 433 (Fla. 5th DCA 1985); Clark v. State, 490 So. 2d 1349 (Fla. 1st DCA 1986). See generally Chenard v. State, 510 So. 2d 363 (Fla. 3d DCA 1987).
For these reasons, we reverse the sentence below for imposition of one in accordance with the guidelines as supplemented by Rule 3.701(d)(14). Upon remand, the trial court shall also conform the order revoking probation to its pronouncements at the time of the revocation hearing. See King v. State, 451 So. 2d 948 (Fla. 3d DCA 1984).
Reversed and remanded with directions.
DANIEL S. PEARSON, J., concurs.
[*1240] JORGENSON, Judge,
concurring specialty-
I agree because I am bound by Chenard v. State, 510 So. 2d 363 (Fla. 3d DCA 1987). But for Chenard, I think the trial judge acted properly in departing from the guidelines where two violations of probation have been proved although only one was relied upon by the trial court in justifying the departure. Perhaps the guidelines should be amended to allow a greater departure when more than one violation of probation occurs.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited (12 total)
- State v. Pentaude, 500 So. 2d 526 (Fla. 1987)
- Purvis Lee Williams v. State, 462 So. 2d 36 (Fla. 1st DCA 1984)
- Jean v. State, 455 So. 2d 1083 (Fla. 2d DCA 1984)
- House OF Prayer OF Apostolic Faith, Inc. v. Watson, 496 So. 2d 220 (Fla. 3d DCA 1986)
- Spivey v. State, 481 So. 2d 100 (Fla. 3d DCA 1986)
- Shelton v. State, 478 So. 2d 433 (Fla. 5th DCA 1985)
- Chenard v. State, 510 So. 2d 363 (Fla. 3d DCA 1987)
- Scott v. State, 488 So. 2d 146 (Fla. 3d DCA 1986)
- Apelle King v. State, 451 So. 2d 948 (Fla. 3d DCA 1984)
- Clark v. State, 490 So. 2d 1349 (Fla. 1st DCA 1986)