MICHAEL LIVINGSTON DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The defendant was sentenced to three-year terms for multiple felony convictions, some running concurrently. The court reversed in part, finding that sentences for certain felonies without mandatory minimums or probation revocation exceeded guideline ranges without stated reasons for departure.
The trial court properly imposed sentences at or above the guidelines range for convictions with revoked probation or mandatory minimums, but improperly imposed sentences exceeding the guidelines range for remaining felonies without stating reasons for departure.
[1] A trial court may properly impose a sentence within the guidelines range for a felony offense when probation for that offense has been revoked.
[2] A trial court is authorized to exceed the guidelines range for an offense that carries a mandatory minimum term of incarceration.
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Join FLexlaw to unlock all legal intelligence“As to the remaining felony convictions, the sentences for those offenses should not have exceeded the guidelines range of 12-30 months without stating a reason for departure.”
Establishes the core holding that departure from guidelines requires explicit justification
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Join FLexlaw to unlock all legal intelligenceDavis was convicted of multiple felonies and sentenced to three-year terms on each, to run concurrently. Two of the convictions involved offenses for …
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ORFINGER, Judge.
The defendant was sentenced under one scoresheet for multiple offenses, the scoresheet indicating a presumptive guidelines range of 12-30 months. Defendant was sentenced to a three year term of incarceration for each felony conviction, each to be served concurrently. Two of the felony convictions were offenses for which defendant had been placed on probation, now revoked. Therefore, as to those offenses, the trial court could properly bump up the sentences to the three year guidelines range. Florida Rules of Criminal Procedure 3.701 d.14. Another conviction carried a three year mandatory minimum term of incarceration, so the trial court was authorized to exceed the guidelines range as to that offense. Fla.R. Crim.P. 3.701 d.9.
As to the remaining felony convictions, the sentences for those offenses should not have exceeded the guidelines range of 12-30 months without stating a reason for departure. See Cummins v. State, 519 So. 2d 718 (Fla. 5th DCA 1988). The appellate public defender in the An-ders 1 brief claims that there is no prejudicial error since the sentences run concurrent. Nevertheless, the defendant is entitled to have the record set straight even if there is little possibility that the total time actually spent in jail will be affected. See, e.g., Disinger v. State, 526 So. 2d 213 (Fla. 5th DCA 1988). We remand the case to the trial court for resentencing as to the felonies committed subsequent to defendant being placed on probation for which there is no mandatory term of incarceration.
REMANDED with instructions.
DAUKSCH and DANIEL, JJ., concur. . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
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Poole v. State, 777 So. 2d 1186 (Fla. 5th DCA 2001)…evertheless, Poole correctly insists that he is entitled to an accurate 1994 scoresheet and we remand for that purpose although it will not affect his sentence. See Disinger v. State, 526 So. 2d 213, 214 (Fla. 5th DCA 1988); see also Davis v. State, 529 So. 2d 1251, 1252 (Fla. 5th DCA 1988) (the defendant is entitled to have the record set straight even if there is little possibility that the total time spent in jail will be affected). The sentence is affirmed and the matter remanded only for the purpose of c…
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Lopez-Vasquez v. State, 966 So. 2d 996 (Fla. 5th DCA 2007)…itled to correction of the judgment to reflect Appellant’s correct misdemeanor offense.”); Poole v. State, 777 So. 2d 1186, 1187 (Fla. 5th DCA 2001) (defendant “correctly insists that he is entitled to an accurate 1994 score-sheet”); Davis v. State, 529 So. 2d 1251, 1252 (Fla. 5th DCA 1988) (defendant “entitled to have the record set straight even if there is little possibility that the total time actually spent in jail will be affected”). We further find that appellant’s sentence for count I, which was corr…
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Dussault v. State, 578 So. 2d 430 (Fla. 5th DCA 1991)…); see also Kolovrat v. State, 574 So. 2d 294 (Fla. 5th DCA 1991). Dussault is entitled to have the record corrected notwithstanding the imposition of concurrent fifteen-year probationary terms for several second-degree felonies. See Davis v. State, 529 So. 2d 1251 (Fla. 5th DCA 1988). AFFIRMED in part; REVERSED in part; REMAND for correction of sentence. W. SHARP, and DIAMANTIS, JJ., concur.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Disinger v. State, 526 So. 2d 213 (Fla. 5th DCA 1988)
- Cummins v. State, 519 So. 2d 718 (Fla. 5th DCA 1988)