CHRISTOPHER CALLIHAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Christopher Callihan appeals his probation revocation and five-year sentence for cannabis possession and sale, challenging whether he was properly sentenced under Florida's sentencing guidelines. The court affirms the conviction and sentence but clarifies that because the defendant did not affirmatively elect to be sentenced under the guidelines, the sentence must be treated as a non-guidelines sentence.
The defendant did not affirmatively select to be sentenced under the guidelines, so the departure issue need not be addressed. Silence or acquiescence by the defendant and counsel does not constitute the affirmative, clear, and unequivocal choice required by statute. However, reversal is unnecessary because the sentence imposed was within the statutory maximum, and the sentence shall be considered a non-guidelines sentence.
[1] Sentencing guidelines do not apply to crimes committed before their effective date unless the defendant affirmatively selects to be sentenced under the guidelines.
[2] A defendant's or their counsel's silence or acquiescence does not constitute an affirmative, clear, and unequivocal selection to be sentenced under the guidelines.
Previewing 2 of 3 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“Section 921.-001(4)(a), Florida Statutes (1983), forecloses the application of sentencing guidelines to crimes perpetrated prior to that date absent an affirmative selection by the defendant.”
Establishes that guidelines do not apply to pre-October 1, 1983 crimes without defendant's affirmative choice
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Join FLexlaw to unlock all legal intelligenceCallihan's offenses were committed before Florida's sentencing guidelines became effective on October 1, 1983. At sentencing, when the court asked def…
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SCHEB, Judge.
The defendant, Christopher Callihan, appeals the revocation of his probation and his five year sentence for possession and sale of cannabis, imposed after the court found he had violated his probation. Calli-han focuses his argument on his not selecting to be sentenced under the sentencing guidelines. Furthermore, he argues that even if he had chosen to be sentenced under the guidelines, the court imposed a sentence in excess of the presumptive guidelines sentence without issuing written reasons for departure. As we find that the defendant did not affirmatively select to be sentenced under the guidelines, we do not reach the departure issue.
Defendant’s offenses were committed before the sentencing guidelines became effective on October 1, 1983. Section 921.-001(4)(a), Florida Statutes (1983), forecloses the application of sentencing guidelines to crimes perpetrated prior to that date absent an affirmative selection by the defendant. The record reflects that when the court asked defense counsel if defendant chose to be sentenced pursuant to the guidelines, she said, “I can’t tell from my record whether they were elected previously or not ... I haven’t discussed this with Mr. Callihan. I would like to discuss it with him.” Moments later when the prosecutor said that “guidelines have been elected,” neither the defense counsel nor the defendant corrected that assertion. After defense counsel responded to the court’s questions about a guidelines departure case produced by the prosecutor, the judge sentenced the defendant with reference to a recommended guidelines sentence.
The state argues that the silence on the part of the defendant and his counsel suggests waiver or acquiescence, but from our view of the record, we believe it does not indicate the affirmative, clear, and unequivocal choice the statute requires. Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984). Nevertheless, since the court sentenced the defendant within the statutory maximum, a reversal of the sentence is not necessary. Accordingly, we affirm the defendant’s conviction and sentence with the proviso that the sentence shall be considered a nonguidelines sentence.
CAMPBELL, C.J., and LEHAN, J., concur.
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Cited By
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Romulo Koffiel v. State, 609 So. 2d 160 (Fla. 3d DCA 1992)…v. State, 366 So. 2d 530 (Fla. 3d DCA 1979), we affirm the judgment of conviction for second degree murder with a [*161] firearm. We also affirm defendant’s sentence with the proviso that it be considered a non-guideline sentence. Callihan v. State, 529 So. 2d 322 (Fla. 2d DCA 1988); McPhaul v. State, 497 So. 2d 730 (Fla. 2d DCA 1986). Affirmed; sentence modified.…
Authorities Cited
- Jordan v. State, 460 So. 2d 477 (Fla. 2d DCA 1984)