ROBERT J. O'BRIEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1988-11-03
No. 87-828
SHARP, C.J., and ORFINGER, J., concur., COWART, J., concurs specially with opinion.
532 So. 2d 1351 Florida District Court of Appeal, Fifth District (1988)

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.

Synopsis

Defendant O'Brien was originally convicted of attempted armed robbery and aggravated battery. After serving his sentence on the battery charge and violating probation on the robbery charge, he was sentenced to 18 years imprisonment with an improper departure from sentencing guidelines. The appellate court vacated the sentence for insufficient reasons for departure and remanded for resentencing within guidelines.


Holding

The departure sentence was improper and is vacated. The trial court's reasons for departure were insufficient because: (1) the prior incarceration was punishment for the separate aggravated battery offense, not the attempted armed robbery for which he was now being sentenced; (2) Florida Rule of Criminal Procedure 3.701(d)(14) allows a sentence increase to the next higher guideline cell without requiring a reason for departure; (3) the cocaine possession charge could not support departure because it was not included in the scoresheet; and (4) the maximum guideline sentence of 3½ years does constitute punishment.


Headnotes

[1] A sentence imposed after revocation of probation may be increased to the next higher guideline range cell without requiring a reason for departure.

[2] A new criminal conviction that forms the basis for probation revocation cannot serve as a reason for a departure sentence on the original offense if the new offense has n…

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Key Quotes

“a sentence imposed after revocation of probation may be increased to the next higher cell (guideline range) without requiring a reason for departure”

Establishes that the trial court had authority to increase the sentence without departure reasoning

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Facts & Procedural History

O'Brien was adjudicated guilty of attempted armed robbery and aggravated battery. He served 30 months on the aggravated battery offense and was placed…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The defendant was originally adjudicated guilty of two offenses: attempted armed robbery (§ 812.13(2)(a), Fla.Stat.) and ag gravated battery (§ 784.045(l)(b), Fla. Stat.). He was sentenced to thirty months imprisonment on the aggravated battery offense and was placed on five years probation on the attempted armed robbery offense. After serving the confinement sentence on the aggravated battery offense, the defendant violated his probation on the attempted armed robbery offense by committing a new crime involving the possession of cocaine. After his probation was terminated, he was sentenced in this case on the original offense of attempted armed robbery. The guidelines scoresheet prepared at that sentencing totals 60 points, resulting in a recommended guideline sentence of community control or 12-30 months’ incarceration. The trial court imposed a sentence of incarceration for a term of l}k years “followed by a period of restored and extended to years on probation” 1 giving as reasons for departure:

The defendant served 2V2 years, the maximum in this cell. He then began a term of probation. He violated the probation by committing a new crime, possession of cocaine. To stay within the recommended guideline would be to impose no punishment.

The defendant appeals the departure sentence.

The 2V2 years the defendant was previously incarcerated was as punishment for the aggravated battery offense. He is now being sentenced for the attempted armed robbery offense for which he was originally placed on probation. Florida Rule of Criminal Procedure 3.701d.l4. provides that a sentence imposed after revocation of probation may be increased to the next higher cell (guideline range) without requiring a reason for departure. The next higher guideline range cell authorizes yH?r&lz years incarceration. For some reason not shown by the record, the possession of cocaine charge which was the basis for termination of the probation on the attempted armed robbery offense apparent ly did not constitute an additional offense at conviction (Rule 3.701d.4.) and was therefore not part of this scoresheet in this case. If the defendant is convicted of the cocaine charge, he can then be sentenced and punished for that offense; that charge is no reason for a departure sentence in this case.

We cannot agree with the trial court that the imposition of a non-departure sentence of 3V2 years incarceration for the offense of attempted armed robbery for which the defendant is now being sentenced will constitute “no punishment.”

The reasons for departure being insufficient, the sentence imposed is vacated and the cause is remanded with directions that the trial court impose a sentence within the authorized guidelines range, being a sentence not exceeding 3V2 years incarceration.

SENTENCE VACATED, CAUSE REMANDED.

SHARP, C.J., and ORFINGER, J., concur. COWART, J., concurs specially with opinion.

. We do not understand what was intended or accomplished by this quoted language.

Concurrence
COWART, Judge,

COWART, Judge,

concurring specially.

I concur but note that the defendant was sentenced to incarceration as to one offense and placed on probation in lieu of being sentenced as to another offense. In the sentencing alternative classification scheme contained in Poore v. State, 531 So. 2d 161 (Fla.1988), as to one offense the sentence was “(1) a period of confinement” and as to the second offense the sentencing alternative was “(5) straight probation.” This case involves neither a “true split sentence” under section 948.01(8), Florida Statutes, nor a “probationary split sentence.” In the opinion in O’Brien v. State, 478 So. 2d 497 (Fla. 5th DCA 1985), came dismissed, 480 So. 2d 1296 (Fla.1985), O’Brien’s sentence in this case was referred to as a “split sentence.” That statement was an error.


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