DARYL DAVID BODINE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bodine appeals his sentence of 30 months imprisonment followed by 2 years community control after his probation was revoked. The appellate court holds that under Florida sentencing guidelines, when the presumptive sentence bracket allows only community control or incarceration (but not both), imposing both sanctions without written departure reasons violates the guidelines.
The court holds that Bodine's sentence was improper. When a sentencing guideline bracket provides for either community control or incarceration as alternative presumptive sentences, the court cannot impose both without written departure reasons. The sentence must be vacated and the case remanded for resentencing.
[1] When sentencing a defendant after revocation of probation, the presumptive guideline sentence range dictates the permissible sentencing options.
[2] If the presumptive guideline sentence range allows for either community control or a period of incarceration, imposing both community control and incarceration without wr…
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“In this particular bracket it is clear that the presumptive sentence could only be either community control or 12 to 30 months incarceration. If incarceration was imposed, there could be no community control, based on the language of the guidelines.”
Establishes the core rule that sentencing brackets offering alternative presumptive sentences cannot be combined without departure justification
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Join FLexlaw to unlock all legal intelligenceBodine pleaded guilty to burglary of a dwelling and grand theft in 1982 and was placed on probation with withheld imposition of sentence. In June 1986…
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[*783] COBB, Judge.
The issue in this case is whether the trial court erred in sentencing the appellant, Daryl David Bodine, to imprisonment and to community control.
Pursuant to a plea of guilty, a judgment of guilt was entered against Bodine on July 14, 1982, for the offenses of burglary of a dwelling and grand theft; the imposition of sentence was withheld and Bodine was placed on probation. On June 2, 1986, Bo-dine entered a plea of guilty to a charge of probation violation. The trial court entered a judgment, pursuant to the plea of guilty, on the burglary and grand theft charges, and sentenced Bodine to imprisonment for 30 months on the burglary charge, followed by two years’ community control on the grand theft charge.1
Although Bodine’s recommended sentence was any nonstate prison sanction, the sentence imposed after revocation of probation could have been increased to the next higher cell2 without requiring a reason for departure;3 thus, Bodine argues that the trial court could have sentenced him to community control or to 12 to 30 months’ incarceration, but not both, since no written reasons for a departure sentence were given.
The present case is governed by Hankey v. State, 505 So. 2d 701 (Fla. 5th DCA 1987), review denied, 515 So. 2d 230 (Fla.1987). In Hankey, the defendant’s presumptive guideline sentence was community control or 12 to 30 months’ incarceration. This court determined:
In this particular bracket it is clear that the presumptive sentence could only be either community control or 12 to 30 months incarceration. If incarceration was imposed, there could be no community control, based on the language of the guidelines. Similarly, the court could not have imposed incarceration time if it elected community control.
Id. at 701. See also Avera v. State, 512 So. 2d 215 (Fla. 5th DCA 1987); VanKooten v. State, 512 So. 2d 214 (Fla. 5th DCA 1987).
Accordingly, since no written reasons for departure were given, Bodine’s sentence must be vacated and this case is remanded for resentencing.
As we did in Avera and VanKooten, we certify a conflict with our sister court’s opinion in Francis v. State, 487 So. 2d 348 (Fla. 2d DCA), review denied, 492 So. 2d 1332 (Fla.1986).
SENTENCE VACATED; REMANDED.
UPCHURCH, C.J., and DAUKSCH, J., concur. .Bodine's guideline scoresheet total was 35 points, and the recommended range was any nonstate prison sanction.
. The next higher cell provided for community control or 12 to 30 months’ incarceration.
. See Fla.RXrim.P. 3.701 d.14.
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State v. Bodine, 522 So. 2d 830 (Fla. 1988)…OVERTON, Justice. In accordance with our decision in State v. Van Kooten, 522 So. 2d 830 (Fla.1988), we approve the decision of the Fifth District Court of Appeal in Bodine v. State, 517 So. 2d 782 (Fla. 5th DCA 1988).* It is so ordered. McDonald, C.J., and EHRLICH, SHAW, BARKETT and KOGAN, JJ., concur. * We have jurisdiction based on conflict with Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986). Art. V, § 3(b)(4), Fla.Const.…
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Brooks v. State, 519 So. 2d 1156 (Fla. 5th DCA 1988)…such concern. The departure sentence is reversed and remanded for the imposition of a guidelines sentence. Shull v. Dugger, 515 So. 2d 748 (Fla.1987).2 SENTENCE VACATED; CAUSE REMANDED. ORFINGER and COBB, JJ., concur. . See also Bodine v. State, 517 So. 2d 782 (Fla. 5th DCA 1988); Avera v. State, 512 So. 2d 215 (Fla. 5th DCA 1987); VanKooten v. State, 512 So. 2d 214 (Fla. 5th DCA 1987). . We reject the defendant's contentions that the trial court imposed $225 in costs without giving her notice and opport…
Authorities Cited
- Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986)
- Hankey v. State, 505 So. 2d 701 (Fla. 5th DCA 1987)
- Avera v. State, 512 So. 2d 215 (Fla. 5th DCA 1987)
- State v. Demas, 512 So. 2d 214 (Fla. 3d DCA 1987)
- VanKOOTEN v. State, 512 So. 2d 214 (Fla. 5th DCA 1987)