RICHARD W. JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richard Johnson appealed the revocation of his probation and imposition of an 18-month prison sentence. The court vacated and remanded for resentencing because the trial court failed to clearly establish on the record whether Johnson elected to be sentenced under Florida's sentencing guidelines, which would have affected his parole eligibility.
The court held that the record must clearly and unequivocally show that a defendant sentenced for a crime occurring before the sentencing guidelines' effective date elected to be sentenced under the guidelines. Because the record did not clearly establish such an election, the case was remanded for resentencing to allow the trial court to determine Johnson's election or impose a sentence reflecting his parole eligibility under pre-guidelines law.
[1] A defendant whose crime occurred prior to the effective date of sentencing guidelines must make a clear and unequivocal election on the record to be sentenced under those…
[2] A trial court has an affirmative duty to determine whether a defendant elects to be sentenced under the guidelines when the crime predates their effective date.
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“According to Section 921.001(4)(a), Florida Statutes, the record must indicate an affirmative election by the appellant to be sentenced under the guidelines if the crime occurred prior to the effective date of the statute.”
Establishes the statutory requirement for clear, on-the-record election to guidelines sentencing for pre-effective-date crimes
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceJohnson was placed on five years' probation on April 24, 1981, after pleading guilty to grand theft. On July 30, 1985, his parole officer filed a repo…
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PER CURIAM.
This cause is before us on appeal of a judgment revoking appellant’s probation and imposing an 18-month prison term. For the reasons set forth below, we vacate and remand for resentencing.
On April 24, 1981, the trial court placed appellant on five years’ probation after he pled guilty to a grand theft charge. On July 30, 1985, appellant’s parole officer filed a report alleging a variety of technical and substantive violations. The trial judge subsequently revoked appellant’s probation and ordered his imprisonment. Appellant’s crime occurred prior to October 1,1983, the date the sentencing guidelines became effective in Florida. The significant difference is that a sentence imposed prior to the guidelines allows for parole eligibility, while sentencing under the guidelines does not.
According to Section 921.001(4)(a), Florida Statutes, the record must indicate an affirmative election by the appellant to be sentenced under the guidelines if the crime occurred prior to the effective date of the statute. Appellant claims that he did not elect to be sentenced under the guidelines and that his sentence must be modified to reflect his eligibility for parole. The State asserts that the trial court did not impose the 18-month sentence pursuant to the guidelines, even though the record contains a sentencing guidelines scoresheet.
In Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984), the Second District held that, in circumstances such as these, the defendant must make a clear and unequivocal choice on the record to elect sentencing under the guidelines. Where the record is unclear, the case should be remanded to the trial court for another sentencing hearing. See also Kearse v. State, 501 So. 2d 80 (Fla. 1st DCA 1987). Furthermore, in Finklea v. State, 470 So. 2d 90 (Fla. 1st DCA 1985), this court held that a trial court has an affirmative duty to determine whether a defendant elects to be sentenced under the guidelines. Nothing in the record sub judice indicates clearly that appellant elected to be sentenced under the guidelines. Where the record is unclear, the cause must be remanded for resentencing. Favors v. State, 473 So. 2d 815 (Fla. 2d DCA 1985); McClatchie v. State, 482 So. 2d 550 (Fla. 4th DCA 1986).
Accordingly, we vacate and remand for resentencing.
BOOTH, THOMPSON and WIGGINTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Boyd v. State, 538 So. 2d 517 (Fla. 1st DCA 1989)…made an affirmative election to be sentenced under the guidelines. Since this court has held that the existence of a sentencing guideline scoresheet does not constitute an affirmative election to be sentenced under the guidelines, Johnson v. State, 516 So. 2d 1100 (Fla. 1st DCA 1987), we are not convinced by appellee’s argument that the presence of the scoresheet establishes a previous election. We therefore remand for the trial court to make a determination as to whether the appellant elected to be sentenced…
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Nealy v. State, 518 So. 2d 985 (Fla. 1st DCA 1988)…he original sentence, therefore, was illegal in the sense that it was imposed without the trial court fulfilling its affirmative duty to determine whether a defendant elects guidelines sentencing, and therefore must be vacated. See Johnson v. State, 516 So. 2d 1100 (Fla. 1st DCA 1987), and cases cited therein. Because Nealy was not on community control pursuant to a valid sentence at the time he allegedly violated the terms and conditions thereof, the sentence of five years’ incarceration following violation o…
Authorities Cited
- Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984)
- Finklea v. State, 470 So. 2d 90 (Fla. 1st DCA 1985)
- Kearse v. State, 501 So. 2d 80 (Fla. 1st DCA 1987)
- Lowery v. State, 473 So. 2d 815 (Fla. 2d DCA 1985)
- McCLATCHIE v. State, 482 So. 2d 550 (Fla. 4th DCA 1986)