RANDY E. ELLIOTT, 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.
Randy Elliott challenges his concurrent sentences for burglary and dealing in stolen property committed while on probation. The court reversed, holding that sentences combining incarceration and community control that exceed the recommended guidelines constitute departure sentences requiring written justification, though incarceration plus probation alone does not.
Incarceration plus community control totaling more than the recommended guideline sentence constitutes a departure sentence requiring written reasons. However, incarceration up to the maximum recommended guidelines sentence followed by probation up to the statutory maximum is not a departure and requires no written justification.
[1] A sentence may properly include incarceration, community control, and probation.
[2] A sentence imposing incarceration plus community control, where the total terms exceed the recommended incarcerative sentence, is a departure sentence requiring written r…
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“a sentence that imposes incarceration plus community control, the total terms of which exceed the recommended incarcerative sentence, is a departure sentence for which written reasons must be given”
Establishes the core holding that combined incarceration and community control exceeding guidelines is a departure requiring justification
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceWhile on probation, Elliott was convicted of burglary and dealing in stolen property for crimes occurring in 1982. He pled guilty to violating probati…
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 Incarceration cases and more on FLexlaw
CAMPBELL, Chief Judge.
Appellant, Randy E. Elliott, challenges his sentence on appeal. While on probation, appellant was convicted of burglary and dealing in stolen property, crimes that had occurred in 1982. Appellant pled guilty to violating his probation and elected to be sentenced under the guidelines. The recommended guidelines sentence with the increase for violation of probation was two-and-one-half to three-and-one-half years incarceration. Appellant was sentenced to three-and-one-half years to be followed by one year community control for the burglary charge. He was sentenced to three-and-one-half years to be followed by two years community control and four years probation for the dealing in stolen property charge. The sentences were to run concurrently with each other.
We conclude first that it is not improper to impose a sentence that includes the three types of sentencing alternatives, i.e., incarceration, community control and probation. Cf. Teaford v. State, 524 So. 2d 1162 (Fla. 2d DCA 1988); Falzone v. State, 527 So. 2d 837 (Fla. 2d DCA 1988).
However, a sentence that imposes incarceration plus community control, the total terms of which exceed the recommended incarcerative sentence, is a departure sentence for which written reasons must be given. See State v. Van Kooten, 522 So. 2d 830 (Fla.1988); State v. Mestas, 507 So. 2d 587 (Fla.1987); Teaford; Hankey v. State, 505 So. 2d 701 (Fla. 5th DCA 1987).
It is not improper, however, to impose an incarcerative sentence up to the maximum recommended guidelines sentence to be followed by probation up to the statutory maximum penalty provided for the offense for which sentence is being imposed. That type of sentence, incarceration plus probation, is not a departure sentence. Green v. State, 527 So. 2d 277 (Fla. 2d DCA 1988); Burrell v. State, 483 So. 2d 479 (Fla. 2d DCA 1986); McKinley v. State, 519 So. 2d 1154 (Fla. 5th DCA 1988); Cain v. State, 506 So. 2d 1125 (Fla. 1st DCA 1987); Bell v. State, 479 So. 2d 309 (Fla. 5th DCA 1985).
We, therefore, reverse appellant’s sentences on the grounds that they represent a departure sentence for which written reasons were not given. At the time appellant was sentenced, his sentence was not considered a departure sentence by this court. Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986), disapproved of in State v. Van Kooten. Therefore, on remand, appellant may be resentenced to the same sentence if valid written reasons for departure are given or he shall be resentenced pursuant to the recommended guidelines sentence and the holding of this opinion. Shull v. Dugger, 515 So. 2d 748 (Fla.1987).
Reversed and remanded.
LEHAN and FRANK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Monroe v. State, 539 So. 2d 574 (Fla. 5th DCA 1989)…bation, cannot exceed (when added to incarceration) the recommended incarcerative sentence without valid written reasons for departure. See State v. Van Kooten, 522 So. 2d 830 (Fla.1988); State v. Mestas, 507 So. 2d 587 (Fla.1987); Elliott v. State, 528 So. 2d 98 (Fla. 2d DCA 1988). Accordingly, we strike the two year community control consecutive sentence. Judgment AFFIRMED; Sentence AFFIRMED as Modified. SHARP, G.J., and DANIEL, J., concur.…
-
COX v. State, 550 So. 2d 1169 (Fla. 4th DCA 1989)…oned that imposing “both community control and probation is contrary to the pertinent statutes1 addressing community control, probation, and alternative forms of disposition and sentencing.” We are aware of the contrary holding in Elliott v. State, 528 So. 2d 98 (Fla. 2nd DCA 1988), but choose to follow the other cited authority. REVERSED AND REMANDED FOR RESENTENCING CONSISTENT WITH THIS OPINION. DELL and GUNTHER, JJ., concur. . Sections 948.01 and 921.187, Florida Statutes (1987).…
Authorities Cited (13 total)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- State v. VanKOOTEN, 522 So. 2d 830 (Fla. 1988)
- State v. Bodine, 522 So. 2d 830 (Fla. 1988)
- State v. Mestas, 507 So. 2d 587 (Fla. 1987)
- Francis v. State, 487 So. 2d 348 (Fla. 2d DCA 1986)
- Hankey v. State, 505 So. 2d 701 (Fla. 5th DCA 1987)
- McKINLEY v. State, 519 So. 2d 1154 (Fla. 5th DCA 1988)
- Burrell v. State, 483 So. 2d 479 (Fla. 2d DCA 1986)
- Cain v. State, 506 So. 2d 1125 (Fla. 1st DCA 1987)
- Bell v. State, 479 So. 2d 309 (Fla. 5th DCA 1985)