EDWARD PAUL PETERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Edward Peters appealed his sentence contending that the trial court improperly increased his sentence by one cell for violating community control and that such enhancement violated the ex post facto clause. The Florida District Court of Appeal rejected both arguments and affirmed the sentence.
The court held that the sentence enhancement was proper. The trial court had the authority to depart from the presumptive sentencing range and impose enhanced sentences for violation of community control even before the amendment to the sentencing guidelines, and the later amendment merely confined such enhancement to the next higher cell rather than creating a new penalty.
[1] A trial court may "bump up" a defendant's sentence one cell for violating community control, even when sentencing for a new substantive offense.
[2] A rule amendment that limits the enhancement for a single violation of probation or community control to the next higher cell does not constitute an ex post facto penalty…
Previewing 2 of 4 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“At the time the appellant was placed in community control, the trial court possessed the power to depart from the presumptive range and impose a sentence more severe than that contemplated by the scoresheet's computation in the event community control were violated.”
Establishes that trial courts had authority to enhance sentences for community control violations prior to the amendment, defeating the ex post facto argument.
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Join FLexlaw to unlock all legal intelligencePeters was sentenced for a new substantive offense. The trial court imposed a sentence increase of one cell based on Peters' violation of community co…
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PER CURIAM.
Appellant raises two points regarding his sentence. We find both without merit.
The first contention is that it was error for the trial court to “bump up” the sentence one cell for violation of community control in a case where appellant was being sentenced for a new substantive offense.
Appellant relies on Meadows v. State, 498 So. 2d 1018 (Fla. 2d DCA 1986).
However, Meadows was receded from, en banc, in Frick v. State, 510 So. 2d 1077 (Fla. 2d DCA 1987), and the “bump up” was proper. The appellant next contends that the “bump up” for violation of community control was not authorized until an amendment to the sentencing guidelines which occurred after the dates when the appellant’s offenses were committed. See Fla.R. Crim.P. 3.701(d)(14).
Thus, it is contended that the “bump up” is violative of the prohibition against ex post facto penalties. See Miller v. Florida, — U.S. -, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987).
We disagree. At the time the appellant was placed in community control, the trial court possessed the power to depart from the presumptive range and impose a sentence more severe than that contemplated by the scoresheet’s computation in the event community control were violated. Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984). Had the amendment introducing rule 3.701(d)(14) into the guidelines not been adopted, the trial court would have been free to impose an enhanced sentence limited only by the strictures of rule 3.701(d)(ll).
Thus, the effect of rule 3.701(d)(14) is to confine enhancement in the context of a single violation of probation or community control to the next higher cell.
We find the enhancement of Peters’ sentence through a “bump up,” as opposed to a “departure,” harmless error.
Affirmed.
RYDER, A.C.J., and LEHAN and FRANK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Peters v. State, 531 So. 2d 121 (Fla. 1988)…[*122] KOGAN, Justice. We have for review a decision of the Second District Court of Appeal in Peters v. State, 516 So. 2d 60 (Fla. 2d DCA 1987), which is in direct and express conflict with Cummins v. State, 519 So. 2d 718 (Fla. 5th DCA 1988), and Green v. State, 513 So. 2d 794 (Fla. 4th DCA 1987). We have jurisdiction, article V, section 3(b)(3), of the Florida Constitut…
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Griffin v. State, 519 So. 2d 677 (Fla. 2d DCA 1988)…n prior to the amendment, a probation revocation could have been a valid basis for departure. Accordingly, the failure to designate the probation revocation as a written reason for departure in this situation was harmless error. See Peters v. State, 516 So. 2d 60 (Fla. 2d DCA 1987). DANAHY, C.J., and BOARDMAN, F. EDWARD (Ret.) J., concur.…
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Swain v. State, 553 So. 2d 1331 (Fla. 1st DCA 1989)…ence imposed after revocation of probation or community control may be included within the original cell (guidelines range) or may be increased to the next higher cell (guidelines range) without requiring a reason for departure. In Peters v. State, 516 So. 2d 60 (Fla. 2d DCA 1987), approved, 531 So. 2d 121 (Fla.1988), the court considered the argument advanced by appellant in connection with the second issue in this appeal, i.e., whether a one cell increase for violation of community control constitutes an…1 / 2
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
- Miller v. Florida, 482 U.S. 423 (U.S. 1987)
- Carter v. State, 452 So. 2d 953 (Fla. 5th DCA 1984)
- Meadows v. State, 498 So. 2d 1018 (Fla. 2d DCA 1986)
- Frick v. State, 510 So. 2d 1077 (Fla. 2d DCA 1987)
- Barney Cortell and Harriet Cortell v. Barrow, 510 So. 2d 1077 (Fla. 5th DCA 1987)