DAVID IVRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court affirmed the revocation of the defendant's community control but reversed the sentence imposed. The court found that the reasons given for departing from the sentencing guidelines were invalid.
The court held that the reasons provided by the trial court for departing from the sentencing guidelines were not valid. The mere fact of a violation, the specific nature of the reporting violations, and dissatisfaction with the guidelines were insufficient justifications.
[1] A trial court's dissatisfaction with sentencing guidelines does not constitute a valid reason for departing from those guidelines.
[2] The mere fact of a violation of community control does not, in itself, justify a departure from sentencing guidelines.
Previewing 2 of 4 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“As to the trial court’s first reason, the mere fact of there having been a violation of community control does not justify a departure.”
Establishes that a violation alone is insufficient for a sentencing departure.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe defendant pleaded guilty to violating community control. The trial court revoked his community control and imposed a sentence that departed from t…
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LEHAN, Judge.
We affirm the revocation of defendant’s community control which was entered upon a plea of guilty to allegations of violations of community control.
We reverse defendant’s sentence which was imposed upon the revocation of his community control and which constituted a departure from the sentencing guidelines without valid reasons. As to the trial court’s first reason, the mere fact of there having been a violation of community control does not justify a departure. As to the second reason, we do not conclude that in this case violations consisting of failing to file monthly reports and having been delinquent in such filings constituted sufficiently egregious conduct so as to justify the departure. Compare State v. Pentaude, 500 So. 2d 526 (Fla.1987).
As to the third reason, the trial court’s dissatisfaction with the sentencing guidelines is not a valid departure reason. See Scurry v. State, 489 So. 2d 25 (Fla.1986).
That dissatisfaction in this case apparently derived from the fact that, due to credit for time served on defendant’s original sentence of incarceration before he began, and then violated, community control, no actual additional incarceration would occur from imposition of the guidelines sentence for the violation of community control. See Gilmore v. State, 523 So. 2d 1244 (Fla.2d DCA 1988).
See also Poore v. State, 531 So. 2d 161, 165 (Fla.1988) (“We stress, however, that the cumulative incarceration imposed after violation of probation always will be subject to any limitations imposed by the sentencing guidelines recommendation.
We reject any suggestion that the guidelines do not limit the cumulative prison term of any split sentence upon a violation of probation. To the contrary, the guidelines manifestly are intended to apply to any incarceration imposed after their effective date, whether characterized as a resentencing or revocation of probation.”).
Affirmed in part, reversed in part, and remanded for the imposition of a sentence within the sentencing guidelines recommended range.
RYDER, A.C.J., and DANAHY, J., concur.
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Citator
Cited By
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State v. Jayson Whiteside, 56 So. 3d 799 (Fla. 2d DCA 2011)…he seriousness of the crime, flies in the face of the rationale for the guidelines. In effect this reason reflects a trial judge’s disagreement with the Sentencing Guidelines Commission and is not a sufficient reason for departure.”); Ivry v. State, 534 So. 2d 830, 831 (Fla. 2d DCA 1988) (“[T]he trial court’s dissatisfaction with the sentencing guidelines is not a valid departure reason.”). Because the trial court failed to provide sufficient legal grounds for Whiteside’s departure sentence, we reverse and r…
Authorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Scurry v. State, 489 So. 2d 25 (Fla. 1986)
- State v. Pentaude, 500 So. 2d 526 (Fla. 1987)
- Gilmore v. State, 523 So. 2d 1244 (Fla. 2d DCA 1988)