EDWARD KEITH BRYANT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court vacated a probation violation sentence where the trial judge improperly departed more than one cell upward from guidelines based solely on the defendant's prior credit for time served, which prevented meaningful punishment.
A trial judge may depart one cell upward from guideline sentences for probation violations without additional justification, but cannot depart further solely because the defendant would serve no prison time otherwise.
[1] A trial judge may depart one cell upward from guideline sentences for probation violations without stating additional reasons, but cannot depart further solely because th…
Previewing 1 of 1 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“While we agree an anomalous situation is created when one cannot be imprisoned for a probation violation, such is the law.”
Court acknowledging the trial judge's concern but rejecting it as a valid basis for exceeding one-cell departure
Bryant was originally sentenced to prison and consecutive community control. After serving the prison portion and receiving credit for time served, he…
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DAUKSCH, Judge.
This is an appeal from a sentence where the trial judge departed from the recommended guideline sentence. Because appellant was guilty of violating his probation the judge could lawfully depart one cell upwards without giving any additional reason for departure. Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985). However, it was error to depart beyond one-cell upwards for the sole reason that appellant would serve no prison time unless the greater departure was imposed. Williams v. State, 492 So. 2d 1308 (Fla.1986). The appellant was originally sentenced to prison and consecutive community control for his crime. After serving the prison portion of the sentence he was under community control and violated its conditions. At sentencing the judge was concerned that no real punishment would result for the violation if only a one-cell departure was permitted because the appellant received credit for the time served under the first portion of the sentence. While we agree an ano malous situation is created when one cannot he imprisoned for a probation violation, such is the law. So, we must vacate the sentence and remand for resentencing.
SENTENCE VACATED.
COWART, J., concurs.
UPCHURCH, C.J., dissents with opinion.
UPCHURCH, Chief Judge,
dissenting.
I must respectfully dissent. I think the trial judge gave a clear and convincing reason for departure when he stated:
It is necessary to go outside the guidelines in order that the defendant be incarcerated for the violation of probation. Without going outside the Guidelines Defendant would be entitled to discharge at the moment of sentencing.
The reason trial courts were given the discretionary authority to depart from the guidelines under Florida Riile of Criminal Procedure 3.701 was because it was recognized that the rules could not anticipate every eventuality. If probation is to be a viable sentencing alternative, a trial judge must have the ability to impose an effective sanction where a defendant refuses to abide by the probationary conditions the court has imposed.
I would affirm.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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McGLOTHLIN v. State, 714 So. 2d 640 (Fla. 4th DCA 1998)…there are clear and convincing reasons. However, it is error to depart beyond one cell upwards for the sole reason that a defendant would serve no prison time unless a greater departure is imposed.” Id. at 73 (citation omitted). See Bryant v. State, 513 So. 2d 1362 (Fla. 5th DCA 1987). See also Torres v. State, 517 So. 2d 796, 797-98 (Fla. 4th DCA 1988); Lockett v. State, 516 So. 2d 46, 47 (Fla. 4th DCA 1987). Here, the only reason stated by the trial court for appellant’s departure sentence was the underlyin…
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Filmore v. State, 519 So. 2d 73 (Fla. 5th DCA 1988)…s of release and was convicted of a substantive crime while on probation). However, it is error to depart beyond one cell upwards for the sole reason that a defendant would serve no prison time unless a greater departure is imposed. Bryant v. State, 513 So. 2d 1362 (Fla.5th DCA 1987). Therefore, the defendant’s sentence is vacated and this case is remanded for resentencing. SENTENCE VACATED and REMANDED. COBB and COWART, JJ., concur.…
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Lockett v. State, 516 So. 2d 46 (Fla. 4th DCA 1987)…since the court had already increased the sentence by one bracket. Similar reasoning was rejected as a basis for departing more than one cell upward without giving any additional reason for departure upon violation of probation in Bryant v. State, 513 So. 2d 1362 (Fla. 5th DCA 1987). In that case, the Fifth District Court of Appeal noted that The appellant was originally sentenced to prison and consecutive community control for his crime. After serving the prison portion of the sentence he was under communi…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 492 So. 2d 1308 (Fla. 1986)
- Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985)