CLIFFORD DEVILLE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the burglary conviction is affirmed, but the sentence must be reversed and remanded for resentencing due to scoring errors and lack of a written order for probation revocation.
Defendant was convicted of burglary and sentenced for that conviction and for prior convictions after probation revocation. The prior convictions were…
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LEHAN, Judge.
Defendant appeals a 1986 conviction for burglary. He also appeals the sentence he received for that conviction and for several 1982 convictions after the probation previously imposed for the 1982 convictions had been revoked. We affirm the conviction, but reverse and remand for resentencing.
We find no merit in defendant’s contentions except for two issues he raises concerning his sentencing. First, defendant contends, and the state concedes, that the 1982 convictions, for which defendant was being sentenced after revocation of probation at the time he was sentenced on the burglary charge, should have been entered on the sentencing guidelines score-sheet as additional offenses at conviction rather than as prior record. Those offenses occurred before the October 1, 1986 effective date of the amendment to the committee note to Florida Rule of Criminal Procedure 3.701(d)(5) which clarified that when sentencing occurs for earlier offenses after revocation of probation at the same time as sentencing for a subsequent criminal offense, the earlier offenses shall be scored as prior record. See The Florida Bar Re: Rules of Criminal Procedure, 482 So. 2d 311, 312 (Fla.1985). Prior to that change, the earlier offenses had been scored as additional offenses at conviction. See Bradley v. State, 480 So. 2d 647 (Fla. 2d DCA 1985). Upon remand, defendant’s scoresheet should be recalculated by scoring the 1982 convictions as additional offenses.
Defendant also contends that the trial court erred in not entering a written order giving the reasons for revoking probation. On remand, the trial court should enter the proper written order, corresponding with his oral pronouncement. See Revear v. State, 497 So. 2d 1337 (Fla. 2d DCA 1986).
The conviction is affirmed. The sentence is reversed and remanded for resentencing.
CAMPBELL, C.J., and SCHEB, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Strickland v. State, 596 So. 2d 1155 (Fla. 2d DCA 1992)…tencing, the permitted range of the guidelines must not be applied and offenses for which probation was revoked must be scored as additional offenses instead of as prior record. Watts v. State, 580 So. 2d 899 (Fla. 2d DCA 1991) and DeVille v. State, 529 So. 2d 319 (Fla. 2d DCA 1988). We also reverse the restitution orders imposed in this case because the appellant was not afforded an opportunity to be heard. See Johnson v. State, 547 So. 2d 300 (Fla. 3d DCA 1989). In summary, we affirm the revocation of prob…
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Miller v. State, 549 So. 2d 1106 (Fla. 2d DCA 1989)…of the amendment to the committee note to Florida Rule of Criminal Procedure 3.701(d)(5) now requiring the scoring of pri- or offenses as prior record upon revocation of probation. Small v. State, 547 So. 2d 273 (Fla. 2d DCA 1989); DeVille v. State, 529 So. 2d 319 (Fla. 2d DCA 1988). Appellant’s scoresheet shall be amended accordingly. Appellant also challenges the trial court’s upward departure from the recommended guidelines range. The court enunciated the following four reasons in its departure order: (1)…
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Small v. State, 547 So. 2d 273 (Fla. 2d DCA 1989)…to Florida Rule of Criminal Procedure 3.701(d)(5), which now requires the scoring of prior offenses as prior record upon revocation of probation. Small’s contention is correct. Gonzalez v. State, 534 So. 2d 1220 (Fla. 2d DCA 1988); DeVille v. State, 529 So. 2d 319 (Fla. 2d DCA 1988). We reverse Small’s sentence and remand for correction of Small’s scoresheet in accordance with this opinion. Upon re-sentencing of Small, the trial judge may depart beyond the one cell for violation of probation because the reas…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Fla. Bar re: Rules of Crim. Procedure (sentencing Guidelines, 482 So. 2d 311 (Fla. 1985)
- Bradley v. State, 480 So. 2d 647 (Fla. 2d DCA 1985)
- Revear v. State, 497 So. 2d 1337 (Fla. 2d DCA 1986)