LAURIE WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court reversed a probation violation sentence because it departed from sentencing guidelines. The court also found that the written orders did not conform to the trial court's oral pronouncements.
1. The sentence was an impermissible departure from the sentencing guidelines. 2. The written orders did not conform to the trial court's oral pronouncements.
[1] A split sentence combining incarceration and probation may be imposed, provided the total sanction does not exceed the statutory maximum.
[2] A trial court's written orders must conform to its oral pronouncements made at a sentencing hearing.
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“In compliance with Van Kooten, we reverse Williams’ sentence of thirty months’ incarceration plus community control.”
Establishes the reversal of the sentence based on sentencing guideline violations.
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Join FLexlaw to unlock all legal intelligenceWilliams pleaded guilty to welfare fraud and received probation. She later pleaded guilty to violating probation and was sentenced to incarceration an…
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PARKER, Judge.
In 1985, Williams entered a plea of guilty to the offense of welfare fraud, and received five years’ probation. In 1987, she pled guilty to a violation of probation, and was sentenced to thirty months’ incarceration followed by two years community control. This represented a one-cell departure from Williams’ recommended guidelines sentence of “any nonstate prison sanction.” The trial court stated Williams’ probation violation as its basis for departure on the space provided in Williams’ scoresheet for that purpose. Williams appeals from the order revoking her probation and entering judgment and sentence against her for the underlying fraud offense. We reverse.
The supreme court, in disapproving this court’s decision in Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986), has now held that the appropriate sentence directed in the second cell of the sentencing guidelines is community control or incarceration. State v. Van Kooten, 522 So. 2d 830 (Fla.1988). In compliance with Van Kooten, we reverse Williams’ sentence of thirty months’ incarceration plus community control. However, we find nothing in the supreme court’s decision that would prohibit the imposition of a term of probation not exceeding the statutory maximum allowable sentence to follow incarceration. Fla. R.Crim.P. 3.701(d)(12).
We now address Williams’ allegations of trial court errors in this appeal. First, she challenges the split sentence on the basis that it violates the prohibition against ex post facto penalties annunciated in Miller v. Florida, — U.S. —, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). Although our reversal of Williams’ sentence renders this point moot, we consider the issue in this opinion in order to obviate its recurrence in a subsequent appeal by Williams, since as previously noted the trial court has the ability on remand to impose a split sentence encompassing probation in place of community control.
The committee note to the split sentence rule 3.701(d)(12), Florida Rules of Criminal Procedure, in effect at the time of Williams’ offense provided that:
If a split sentence is imposed (i.e. a combination of state prison and probation supervision), the incarcerative portion imposed shall not be less than the minimum of the guideline range, and the total sanction imposed cannot exceed the maximum guideline range. (Emphasis added). That note has since been amended to read as follows:
(Emphasis added).
While at first blush the amended note1 appears to result in Williams receiving a harsher penalty than that which could have been imposed under the previous note in a manner violative of Miller, we do not find that to be the case under the particular circumstances here. For the reasons which follow, we hold that the second prong of Miller, which requires that “it [amended note] must disadvantage the offender affected by it [amended note],” has not been satisfied in this case. Id. at 2451 (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)).
Under the guidelines in existence at the time of Williams’ offense of welfare fraud, the trial court potentially could depart to the extent of the statutory maximum sentence of five years 2 for Williams’ violation of probation so long as that reason was stated in writing.3 Therefore, the fact that under the revised committee note the trial court could impose a penalty up to the statutory maximum produced neither a harsher nor more lenient sentence. Stated differently, the ultimate potential sentence which Williams could receive under either the guidelines in effect at time of the crime or the guidelines in existence at sentencing is the same-five years. Cf. Colbert v. State, 518 So. 2d 448 (Fla. 2d DCA 1988) (this court upheld defendant’s split sentence under the amended committee note for the reason that the guidelines at time of offense exposed defendant to a more severe penalty than under the guidelines in effect at resentencing).
Therefore, since the guidelines in existence at the time of Williams’ offense of welfare fraud permitted a sentencing departure to the extent of the statutory maximum sentence of five years for Williams’ violation of probation, there is no reason that the trial court, upon remand, cannot sentence Williams to twelve to thirty months’ incarceration to be followed by probation, so long as the total penalty does not exceed five years. See Johnson v. State, 511 So. 2d 748 (Fla. 5th DCA 1987).
Williams’ second contention which focuses on the lack of conformity of certain aspects of the revocation order, the judgment and sentence to the trial court’s pronouncements is meritorious.
A review of the record before us reflects that the trial court expressly declined to violate Williams for failure to comply with financial obligations, revoking her probation solely upon her commission of a separate criminal offense (condition 5). Nonetheless, the written revocation order indicated Williams had violated conditions 2, 10, and 12, all involving her financial obligations, in addition to condition 5. Likewise, the written judgment and sentence imposed certain conditions (17, 18, and 19) of community control not ordered by the trial court at the sentencing hearing. A trial court’s written orders must conform to its pronouncements. Bexley v. State, 490 So. 2d 226 (Fla. 2d DCA 1986).
Reversed and remanded for proceedings consistent with this opinion.
HALL, A.C.J., and THREADGILL, J., concur. . The committee notes to sentencing guidelines have been adopted by the supreme court as part of the rules and are entitled to the same force and effect as the rules. Joyce v. State, 466 So. 2d 433 (Fla. 5th DCA 1985).
. See § 775.082(3)(d), Fla.Stat. (1983).
. The trial court properly accomplished that here when it listed the VOP as its reason for departure on Williams’ scoresheet. See Speights v. State, 495 So. 2d 882 (Fla. 2d DCA 1986), review denied, 501 So. 2d 1283 (Fla.1986).
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Cited By (11 total)
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Olvey v. State, 609 So. 2d 640 (Fla. 2d DCA 1992)…ally pronounced at sentencing as required by precedent from this court. Tillman v. State, 592 So. 2d 767 (Fla. 2d DCA1992); Mitchell v. State, 590 So. 2d 549 (Fla. 2d DCA1991); Williams v. State, 542 So. 2d 479 (Fla. 2d DCA 1989); Williams v. State, 525 So. 2d 458 (Fla. 2d DCA1988). See also Fla.R.Crim.P. 3.700. He makes this challenge without regard to any actual knowledge of the special conditions which he might have had. Because of the lack of an oral pronouncement, we must strike special conditions 6, 10,…
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Reiter v. State, 674 So. 2d 189 (Fla. 2d DCA 1996)…Reiter to pay $100 in restitution to Kenny Rogers’ Roasters. However, the probation order requires payment of $400 in restitution. Therefore, the written order [*191] must be modified to conform to the court’s oral pronouncement. Williams v. State, 525 So. 2d 458, 460 (Fla. 2d DCA 1988). Affirmed as modified. LAZZARA and FULMER, JJ., concur.…
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Williams v. State, 542 So. 2d 479 (Fla. 2d DCA 1989)…ions of probation that were not orally pronounced at the sentencing hearing requires us to reverse the written order of probation and remand for correction so that the written order of probation conforms to the oral pronouncement. Williams v. State, 525 So. 2d 458 (Fla. 2d DCA 1988). Appellant’s sentences are otherwise affirmed. CAMPBELL, C.J., and LEHAN and ALTENBERND, JJ., concur.…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Weaver v. Graham, 450 U.S. 24 (U.S. 1981)
- Miller v. Florida, 482 U.S. 423 (U.S. 1987)
- State v. VanKOOTEN, 522 So. 2d 830 (Fla. 1988)
- State v. Bodine, 522 So. 2d 830 (Fla. 1988)
- Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986)
- Joyce v. State, 466 So. 2d 433 (Fla. 5th DCA 1985)
- Speights v. State, 495 So. 2d 882 (Fla. 2d DCA 1986)
- Taylor v. State, 511 So. 2d 748 (Fla. 5th DCA 1987)
- Bexley v. State, 490 So. 2d 226 (Fla. 2d DCA 1986)
- Colbert v. State, 518 So. 2d 448 (Fla. 2d DCA 1988)