DUANE GRIFFIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A juvenile defendant appealed the revocation of his probation and resulting convictions and sentences. The appellate court affirmed the revocation and convictions but remanded for correction of the judgment to delete references to a burglary charge not part of the original probation conditions, unproven violation allegations, and proper determination of whether the defendant could be convicted of both grand theft and dealing in stolen property for the same conduct.
The revocation, convictions, and sentences are affirmed with exceptions. The judgment must be remanded to: (1) delete references to the burglary charge not part of the original probation conditions; (2) delete references to the three unproven probation violation conditions; (3) determine whether grand theft and dealing in stolen property arose from the same scheme, and if so, vacate one conviction; and (4) the failure to designate probation revocation as a written reason for sentencing departure constitutes harmless error.
[1] A written order of probation revocation and judgment and sentence should be revised to delete references to charges not included in the original probation terms.
[2] A written order of probation revocation should be revised to delete references to alleged violations that were not proven at the revocation hearing.
Previewing 2 of 6 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“If it is true that both charges involved the same scheme or course of conduct, then defendant is correct that he can be convicted of only one of the two charges.”
Establishes the legal principle that conviction of both grand theft and dealing in stolen property is improper when arising from the same conduct.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGriffin was placed on probation under certain conditions. His probation was revoked and he was convicted on multiple charges. The probation revocation…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Upward Departure From Sentencing Guidelines cases and more on FLexlaw
LEHAN, Judge.
The juvenile defendant appeals the revocation of his probation and the convictions and sentences imposed. We affirm the revocation, convictions and sentences, with the exceptions noted below.
The written order of probation revocation and the written judgment and sentence include a reference to a charge of burglary which was not one of the charges for which ¿ defendant was originally placed on probation. On remand those documents should be revised to delete all references to this burglary charge.
The order of revocation also refers to violations of conditions of probation concerning failure to pay costs of supervision, leaving the county without consent, and failure to pay restitution. At the probation revocation hearing, the trial court found that the state had not proven those violations, although violations of other conditions were proven. On remand the order should be revised to delete all references to violations of the three conditions listed above.
One issue raised by defendant on this appeal—that adult sanctions were improperly imposed upon him—should have been raised, if at all, in an appeal when defendant was originally placed on probation and is not appropriately raised in this appeal from a revocation of that probation. See Bailey v. State, 403 So. 2d 1106 (Fla. 2d DCA 1981).
Defendant also contends that the trial court erred in imposing convictions and sentences for both grand theft and dealing in stolen property because both charges arose from the same course of conduct. If it is true that both charges involved the same scheme or course of conduct, then defendant is correct that he can be convicted of only one of the two charges. See § 812.025, Fla.Stat. (1985); Repetti v. State, 456 So. 2d 1299 (Fla. 2d DCA 1984). Since we cannot conclusively determine from the record whether defendant’s contention is correct, on remand the trial court should make that determination and, if appropriate, vacate one of the two convictions.
Defendant further contends that the sentence for several of the charges was an improper upward departure from the sentencing guidelines. Without giving written reasons, the trial court imposed a one-cell upward departure, apparently pursuant to the amendment to Florida Rule of Criminal Procedure 3.701 which authorized a one-cell upward departure for probation violation. However, since two of the crimes for which defendant’s probation was revoked were committed prior to the effective date of that amendment, the amendment could not properly have' been applied in this case. See Miller v. Florida, — U.S. -, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). Nonetheless, even 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.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991)…court to preserve the error for appeal. State v. Rhoden, 448 So. 2d 1013 (Fla.1984). Even though this error is fundamental, we have held that it must be raised on direct appeal and cannot be raised as error in a subsequent appeal. Griffin v. State, 519 So. 2d 677 (Fla. 2d DCA 1988); see also Davis v. State, 528 So. 2d 521 (Fla. 2d DCA 1988) (findings are an aspect of the sentencing procedure that can be waived by a plea agreement accepted by the trial court). Likewise, scoresheet errors that are not apparent…
-
McCLOUD v. State, 653 So. 2d 453 (Fla. 3d DCA 1995)…re to make findings under subsection 39.059(7) “should have been raised, if at all, in an appeal when defendant was originally placed on probation and is not appropriately raised in this appeal from a revocation of that probation.” Griffin v. State, 519 So. 2d 677, 678 (Fla. 2d DCA 1988); accord Gilbert v. State, 629 So. 2d 303, 304 (Fla. 2d DCA 1993), review denied, 639 So. 2d 978 (Fla.1994); Judge v. State, 596 So. 2d 73, 77 (Fla. 2d DCA 1991), review denied, 613 So. 2d 5 (Fla.1992); Bailey v. State, 403 So…
-
Powell v. State, 606 So. 2d 486 (Fla. 5th DCA 1992)…found that an evaluation of one’s suitability for adult sanctions is required upon a resen-tencing made pursuant to a probation revocation even though that determination was previously made at the original disposition hearing. Cf. Griffin v. State, 519 So. 2d 677 (Fla. 2d DCA 1988); Bailey v. State, 403 So. 2d 1106 (Fla. 2d DCA 1981). While we reach the conclusion that the trial court had the power to impose adult sanctions upon Powell, the power is not without restrictions. Powell had originally received j…
Previewing 3 of 5 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)
- Repetti v. State, 456 So. 2d 1299 (Fla. 2d DCA 1984)
- Peters v. State, 516 So. 2d 60 (Fla. 2d DCA 1987)
- Bailey v. State, 403 So. 2d 1106 (Fla. 2d DCA 1981)