WILLIE BARNES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Willie Barnes was sentenced to three years incarceration for possession of a concealed firearm after violating probation. The court reversed and remanded because the departure from sentencing guidelines exceeded the allowable increase and lacked sufficient written justification beyond the bare notation of probation violation.
The court held that the departure in aggravation exceeding the guidelines by six months is unlawful and must be reversed. A departure of more than one cell increase cannot be supported solely by violation of probation; it requires written reasons other than probation violation. The sentence must be reversed and remanded for resentencing within the 12-30 month guideline range.
[1] A written notation on a sentencing guideline scoresheet satisfies the requirement for written reasons for a departure from sentencing guidelines.
[2] A violation of probation alone is an insufficient written reason to justify a departure from sentencing guidelines that exceeds a one-cell increase.
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Join FLexlaw to unlock all legal intelligence“a written notation on the score sheet fulfills the mandate to put the reasons for departure from the sentencing guidelines in writing”
Establishes that notations on the sentencing scoresheet satisfy the writing requirement for departures, though the content must be adequate
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Join FLexlaw to unlock all legal intelligenceBarnes was initially charged with possession of a concealed firearm and received two years probation. He violated the terms of probation and was subse…
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UPON APPELLANT’S MOTION FOR REHEARING
WALDEN, Judge.
We grant the Motion for Rehearing and withdraw our opinion which was filed on December 9, 1987. Substituted is the following:
Willie Barnes was charged with possession of a concealed firearm and received two years probation. Appellant violated the terms of his probation and was sentenced for the crime of possession of a concealed firearm. The recommended guideline sentence for this offense is any nonstate prison sanction. With a one cell “bump-up” for violation of probation pursuant to Rule 3.701(d)(14), Fla.R.Crim.P., the maximum recommended sentence becomes twelve to thirty months incarceration. The appellant was sentenced to three years incarceration.
Here the only written reason for the departure was “violation of probation”. This reason was noted on the sentencing guideline scoresheet. Although no point of it is made in this appeal, we specifically hold that a written notation on the score sheet fulfills the mandate to put the reasons for departure from the sentencing guidelines in writing. See Hipp v. State, 509 So. 2d 1208 (Fla. 4th DCA 1987); Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985); Knight v. State, 501 So. 2d 150 (Fla. 1st DCA 1987); Speights v. State, 495 So. 2d 882 (Fla. 2d DCA 1986); Contra Mortimer v. State, 490 So. 2d 93 (Fla. 3d DCA 1986); Watson v. State, 492 So. 2d 831 (Fla. 5th DCA 1986); Bouthner v. State, 489 So. 2d 784 (Fla. 5th DCA 1986).
We hold that the departure in aggravation that exceeds the guidelines by six months is unlawful and must be reversed. A departure of more than one cell increase must be supported by written reasons other than that it is upon a violation of probation. Mackey v. State, 495 So. 2d 916 (Fla. 4th DCA 1986).
Reversal for resentencing within the guidelines recommended range of 12 to 30 months is required. The appropriate appellate remedy when all the written reasons given by the trial judge for departure are invalid is to reverse for resentencing within the guidelines recommended range. Williams v. State, 492 So. 2d 1308 (Fla. 1986), State v. Rousseau, 509 So. 2d 281 (Fla.1987).
Because of Shull v. Dugger, 515 So. 2d 748 (Fla.1987), the trial court may not now supply additional reasons to support the sentence.
Reversed and remanded for sentencing in accordance with this opinion.
DELL and STONE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited (12 total)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- State v. Rousseau, 509 So. 2d 281 (Fla. 1987)
- Williams v. State, 492 So. 2d 1308 (Fla. 1986)
- Boynton v. State, 473 So. 2d 703 (Fla. 4th DCA 1985)
- Hipp v. State, 509 So. 2d 1208 (Fla. 4th DCA 1987)
- Speights v. State, 495 So. 2d 882 (Fla. 2d DCA 1986)
- Bouthner v. State, 489 So. 2d 784 (Fla. 5th DCA 1986)
- State v. Mortimer, 490 So. 2d 93 (Fla. 3d DCA 1986)
- Knight v. State, 501 So. 2d 150 (Fla. 1st DCA 1987)
- Watson v. State, 492 So. 2d 831 (Fla. 5th DCA 1986)