ANTHONY B. WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
AFFIRMED on the authority of Franklin v. State, 526 So. 2d 159 (Fla. 5th DCA 1988).
SHARP, C.J., and DANIEL, J., concur. COWART, J., dissents with opinion.
[*454] COWART, Judge,
dissenting.
The defendant’s recommended guideline sentence range was 21/2-31/2 years. The pronounced sentence, imposed without giving any reason for imposition of a departure sentence, was imprisonment
for a term of 5 years. However, after serving a period of 3⅛ years imprisonment in State Prison the balance of such sentence shall be suspended and the defendant shall be placed on probation for a period of 1½ years....
This is a true split sentence as described in, and authorized by, section 948.01(8), Florida Statutes. Although the sentence of 5 years is split into a 3¾⅛ year portion, to be unconditionally served under a commitment issued immediately, and a conditional 1½ year portion, to be suspended and served on a recommitment following a violation of probation, it is, nevertheless, a sentence for 5 years’ incarceration which exceeds the top limit of the recommended guideline range and is, therefore, a departure sentence unsupported by justifying reasons.
The rule of law in all criminal cases is that any ambiguity in statutes, rules, verdicts, judgments, sentences, and any other matter is resolved in favor of the accused. The rule of lenity codified in section 775.-021(1), Florida Statutes, is but one statutory recognition of one aspect of the broader rule of law. The ambiguity that presently inheres in the application of recommended sentencing guideline ranges to true split sentences and to the hybrid sentence composed of an unsplit term of years imprisonment followed by a term of probation should, in both cases, be resolved in favor of the defendant. However, even if the true split sentence in this case is erroneously viewed as being only for a term of 3⅞⅛ years followed by “something,”1 that “something” is an excess of the top limit of the recommended guideline range in this case because 3½ years’ imprisonment subsumes or exhausts the recommended guideline range of 21/2-31/2 years; therefore, the sentence constitutes a departure from the maximum recommended guidelines sentence. The Second District Court of Appeal in Primm v. State, 524 So. 2d 475 (Fla. 2d DCA 1988) recognizes both this and that the principle in Hankey v. State, 505 So. 2d 701 (Fla. 5th DCA 1987), rev. denied, 515 So. 2d 230 (Fla. 1987) and in VanKooten v. State, 512 So. 2d 214 (Fla. 5th DCA 1987), approved, 522 So. 2d 830 (Fla.1988), applies to the sentence in this case.
The sentence in this case is a departure sentence and is invalid because it is not supported by reasons for departure. The affirmance of the sentence directly conflicts with Hankey, VanKooten, and Primm.
. That "something" is either (1) a sentence of 1½ years’ confinement, the execution of which is "suspended," "deferred,” or "withheld," and made conditional on the successful completion of a term of probation, or (2) merely probation with the implied threat that if the conditions of probation are violated, the defendant may be "resentenced." See Wayne v. State, 513 So. 2d 689 (Fla. 5th DCA 1987), receded from in part, Franklin v. State, 526 So. 2d 159 (Fla. 5th DCA 1988), rev. granted, 71,420 (State v. Wayne) (Fla. Feb. 17, 1988).
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Lewis v. State, 574 So. 2d 245 (Fla. 2d DCA 1991)…statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” We construe this statute as applying to the sentencing guidelines rules. See Williams v. State, 528 So. 2d 453, 454 (Fla. 5th DCA 1988) (adopts the rule of lenity in resolving an ambiguity in the application of the guidelines to a true split sentence); §§ 921.0015 and 921.001, Fla.Stat. (Supp. 1988) (adopts rules 3.701 and 3.988, as substantive criminal pena…
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Pearson v. Moore, 767 So. 2d 1235 (Fla. 1st DCA 2000)…orded differently. Any ambiguity inherent in the sentence as it was in fact worded should be resolved in favor of the defendant. See Fla. R.Crim. P. 3.703(d)(15)(D) and (E); generally Dautel v. State, 658 So. 2d 88, 90 (Fla.1995); Williams v. State, 528 So. 2d 453, 454 (Fla. 5th DCA 1988) ("The rule of law in all criminal cases is that any ambiguity in statutes, rules, verdicts, judgments, sentences, and any other matter is resolved in favor of the accused.”). . A coterminous sentence has been defined as a s…
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Fortner v. State, 830 So. 2d 174 (Fla. 2d DCA 2002)…less. Second, any ambiguity or uncertainty in the scoring of a defendant’s prior record must be resolved in favor of the defendant. See Fla. R.Crim. P. 3.703(d)(15)(D); Holybrice v. State, 753 So. 2d 621, 623 (Fla. 4th DCA 2000); Williams v. State, 528 So. 2d 453, 454 (Fla. 5th DCA 1988) (“The rule of law in all criminal cases is that any ambiguity in statutes, rules, verdicts, judgments, sentences, and any other matter is resolved in favor of the accused.”). Here, there is a patent contradiction on the face…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Franklin v. State, 526 So. 2d 159 (Fla. 5th DCA 1988)
- State v. VanKOOTEN, 522 So. 2d 830 (Fla. 1988)
- State v. Bodine, 522 So. 2d 830 (Fla. 1988)
- Hankey v. State, 505 So. 2d 701 (Fla. 5th DCA 1987)
- Wayne v. State, 513 So. 2d 689 (Fla. 5th DCA 1987)
- State v. Demas, 512 So. 2d 214 (Fla. 3d DCA 1987)
- VanKOOTEN v. State, 512 So. 2d 214 (Fla. 5th DCA 1987)
- Primm v. State, 524 So. 2d 475 (Fla. 2d DCA 1988)