THOMAS C. BURTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Burton appeals upward departure sentences imposed for dealing in stolen property and possession of cocaine. The trial court justified the departure based on Burton's multiple probation and community control violations despite repeated rehabilitation opportunities. The appellate court affirmed, holding that multiple violations of probation support a departure sentence.
The court affirmed the upward departure sentences, holding that multiple violations of probation constitute a valid reason supporting a departure from the sentencing guidelines.
[1] Multiple violations of probation or community control support a departure sentence.
[2] A defendant's continued drug use, abuse, and dealing can be considered as part of the nature of probation or community control violations.
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Join FLexlaw to unlock all legal intelligence“Multiple violations of probation support a departure sentence.”
The court's holding establishing the legal basis for the upward departure sentences
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Join FLexlaw to unlock all legal intelligenceBurton pleaded no contest in December 1984 to possession of marijuana, possession of cocaine, and dealing in stolen property, and was placed on probat…
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DANAHY, Chief Judge.
The appellant challenges his upward departure sentences for the offenses of dealing in stolen property and possession of cocaine. We affirm.
On December 17,1984, the appellant pled no contest to charges of possession of marijuana, possession of cocaine, and dealing in stolen property. The trial judge placed the appellant on probation for these offenses. Four months later an affidavit was filed charging the appellant with violations of probation. On August 1, 1985, the appellant pled guilty to the offense of probation violation for possession of cocaine and dealing in stolen property. The trial judge revoked probation and placed the appellant in a community control program for a period of 18 months.
Five months later another affidavit was filed charging the appellant with violation of community control conditions, including the use of cocaine. On March 13,1986, the trial judge found the appellant guilty of violating community control. The trial judge revoked community control, ordered the appellant to reside in the county jail for sixty days and placed him on a community control program for a period of two years.
Four months after that, the appellant was charged with two counts of possession and delivery of cocaine. As a result of plea bargaining, the appellant pled guilty to these two charges and admitted to a violation of community control. The appellant was then sentenced on the 1984 offenses of dealing in stolen property and possession of cocaine. He received a sentence of fifteen years for dealing in stolen property and five years for possession of cocaine, the sentences to run consecutively. These sentences represented an upward departure from the guidelines recommended range.
On the bottom of the guidelines score-sheet, under “reasons for departure,” the trial judge wrote “3rd V.O.P., defendant continues to use, abuse, and deal in drugs. Has exhibited no inclination whatever for complying with laws re illegal drugs.” We view this statement as expressing one reason for the departure — multiple violations of probation or community control. We decline the defendant’s suggestion that the trial judge’s written statement be divided into three separate reasons and analyzed on that basis. In the context of this case, we believe the trial judge’s reference to the defendant’s continued use, abuse and dealing in drugs refers to the nature of the probation or community control violations. The comment that the defendant shows no inclination to comply with the laws regarding illegal drugs is another way of saying that the appellant has failed in three attempts at rehabilitation.
Multiple violations of probation support a departure sentence. DePaul v. State, 505 So. 2d 659 (Fla. 2d DCA 1987); Gordon v. State, 483 So. 2d 22 (Fla. 2d DCA 1985).
We, therefore, affirm the departure sentence in this case.
CAMPBELL and HALL, JJ., concur.
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Cited By
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McINTOSH v. State, 537 So. 2d 115 (Fla. 2d DCA 1988)…and determine that the trial judge intended to depart from the guidelines sentence on the basis of the appellant’s repeated violations of probation and community control and that this is a valid reason justifying the departure. See Burton v. State, 513 So. 2d 245 (Fla. 2d DCA 1987). DANAHY, A.C.J., and PARKER, J., concur.…
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Ramirez v. State, 540 So. 2d 902 (Fla. 2d DCA 1989)…hat the trial judge once again may depart upward from the recommended guidelines at resentencing, because a second violation of probation, the basis for departure being challenged in this appeal, is a valid reason for departure. See Burton v. State, 513 So. 2d 245 (Fla. 2d DCA 1987); Gordon v. State, 483 So. 2d 22 (Fla. 2d DCA 1985). We reverse the trial court’s order denying the motion to correct, reduce, or modify the sentences and remand this case to the trial court to determine whether Ramirez previously…
Authorities Cited
- Gordon v. State, 483 So. 2d 22 (Fla. 2d DCA 1985)
- Vernroy Ahnin v. State, 505 So. 2d 659 (Fla. 2d DCA 1987)