TYRONE WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant must be clearly given an election between the recommended sentence and a sentence one cell upward if they refuse probation.
Williams received a recommended sentence of probation but refused it, stating he wanted to leave the country and could not afford the costs. The court…
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SHARP, Chief Judge.
Williams was given the guidelines recommended sentence of “any non-state prison sanction” when he received a sentence of five years on probation, conditioned upon serving 364 days in jail and payment of various costs and fines. However, at the sentencing hearing, Williams steadfastly declared that he did not want to be placed on probation because he wanted to leave the country and he did not think he could pay the fines and costs of probation. We vacate the sentence.
In Holley v. State, 483 So. 2d 854 (Fla. 5th DCA 1986), we held that if a defendant refused to cooperate or accept probation or community control when that was the recommended sentence [any non-state prison sanction], then the court could depart upward one cell, provided that the defendant was advised of possible alternatives, and “was clearly given an election between the recommended guideline sentence of any non-state prison sanction and a sentence one cell block upward.” 483 So. 2d at 855.1 Accordingly, we vacate the sentence and remand for resentencing pursuant to Holley.
SENTENCE VACATED; REMANDED.
DAUKSCH and DANIEL, JJ., concur. . Judicial economy is thereby ensured since violation of probation can result only in a one-cell departure upwards (12-30 months incarceration). Fla.R.Crim.P. 3.701.d.l4.
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Woods v. State, 542 So. 2d 443 (Fla. 5th DCA 1989)…hs “within the next higher guidelines cell.” According to Woods, a defendant has the right to reject probation and it was error for the trial court not to allow him to do so. Woods relies upon two cases in support of his position: Williams v. State, 522 So. 2d 1022 (Fla. 5th DCA 1988) and Holley v. State, 483 So. 2d 854 (Fla. 5th DCA 1986). In Holley we held that if a defendant refused to cooperate or accept probation or community control when that was the recommended sentence (any nonstate prison sanction),…
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Williams v. State, 541 So. 2d 764 (Fla. 5th DCA 1989)…term of probation, and insisted that the trial court impose a sentence one bracket higher than the applicable guidelines range, without any time on probation. We dismiss this appeal for lack of jurisdiction. Appellant relies upon Williams v. State, 522 So. 2d 1022 (Fla. 5th DCA 1988) and Holley v. State, 483 So. 2d 854 (Fla. 5th DCA 1986). We think these cases are distinguishable because those defendants both fell into the non-state prison brackets under the guidelines, and neither had entered a guilty plea b…
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Evans v. State, 544 So. 2d 1160 (Fla. 5th DCA 1989)…H, Judge. This is an appeal from a sentence. Appellant asserts he is entitled to be sentenced to prison rather than probation if he so requests and the sentence is a one-cell departure as if he had violated probation. He cites Williams v. State, 522 So. 2d 1022 (Fla. 5th DCA 1988) and Holley v. State, 483 So. 2d 854 (Fla. 5th DCA 1986) in support of his assertion. We do not read those cases to say a defendant is so entitled and have said so in Woods v. State, 542 So. 2d 443 (Fla. 5th DCA 1989). Although th…
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- Holley v. State, 483 So. 2d 854 (Fla. 5th DCA 1986)