DERRICK JEROME WESSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Wesson appeals his five-year probation revocation sentence for grand theft of a motor vehicle. The trial court departed upward from the guidelines sentence based on Wesson's commission of a new substantive offense during probation, even though he was not convicted of the new offense. The court affirms but certifies a question of great public importance regarding whether sentencing courts may base departure sentences on unconvicted offenses.
The appellate court affirms the five-year sentence, holding that findings that underlying reasons for a probation violation are substantive in nature permit departure even without a conviction. However, the court certifies the question as one of great public importance to the Florida Supreme Court.
[1] A trial court may depart upwards from sentencing guidelines when a defendant commits a new substantive offense during the period of probation, even if the defendant has n…
[2] A finding that the underlying reasons for a probation violation are substantive in nature permits a departure sentence.
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Join FLexlaw to unlock all legal intelligence“Although Wesson was not convicted of the grand theft offense, a finding that the underlying reasons for a probation violation are more than minor, and are substantive in nature, permits departure even without a conviction.”
Establishes the legal principle allowing upward departure based on unconvicted conduct in probation violation cases
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Join FLexlaw to unlock all legal intelligenceWesson was on probation for grand theft of a motor vehicle when he was alleged to have committed another grand theft of a motor vehicle in February 19…
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SHARP, Chief Judge.
Wesson appeals a five-year sentence he received for violating his probation after pleading guilty to grand theft of a motor vehicle (§ 812.014, Fla.Stat.). The guidelines sentence called for a non-state prison sanction, but the trial court departed upwards by four cells, giving written reasons therefor. We affirm.
An affidavit of probation violation was filed by Wesson’s probation officer alleging, inter alia, that Wesson had committed another grand theft of a motor vehicle offense in February, 1987, during the period of his probation. At the probation revocation hearing, Wesson admitted he had taken the motor vehicle in question without permission.
In departing upwards, the. trial judge gave the following reasons: T. Defendant committed a new substantive offense of grand theft second degree of a motor vehicle while on this probation for the offense of the grand theft second degree of a motor vehicle.
2. Defendant has had one previous violation on an earlier grand theft probation.1
Although Wesson was not convicted of the grand theft offense, a finding that the underlying reasons for a probation violation are more than minor, and are substantive in nature, permits departure even without a conviction. Young v. State, 519 So. 2d 719 (Fla. 5th DCA 1988).2 However, we recognize that this case involves a legal issue which has not, as yet, been settled by our Florida Supreme Court. Accordingly, we certify the following question as one of great public importance:
CAN A DEPARTURE SENTENCE ON ONE OFFENSE BE BASED ON THE DEFENDANT’S COMMISSION OF A SECOND OR SUBSEQUENT OFFENSE AS TO WHICH, AT THE TIME OF SENTENCING ON THE FIRST OFFENSE, THE DEFENDANT HAS NOT BEEN CONVICTED?
ORFINGER, J., concurs.
COWART, J., dissents with opinion.
. This is a valid reason for departure. See Riggins v. State, 477 So. 2d 663 (Fla. 5th DCA 1985).
. But see, Judge Cowart’s dissent in Hamilton v. State, 533 So. 2d 926 (Fla. 5th DCA 1982).
COWART, Judge,
dissenting.-
This court should recede from Young v. State, 519 So. 2d 719 (Fla. 5th DCA 1988) for the reasons set forth in the dissents to Eldridge v. State, 531 So. 2d 741 (Fla. 5th DCA 1988) and Hamilton v. State, 533 So. 2d 926 (Fla. 5th DCA 1988). It is good that the majority is certifying the question.
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Citator
Cited By
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Wesson v. State, 559 So. 2d 1100 (Fla. 1990)…SHAW, Justice. We have for review Wesson v. State, 535 So. 2d 717, 718 (Fla. 5th DCA 1988), to answer the following certified question: CAN A DEPARTURE SENTENCE ON ONE OFFENSE BE BASED ON THE DEFENDANT’S COMMISSION OF A SECOND OR SUBSEQUENT OFFENSE [*1101] AS TO WHICH, AT THE TIME OF SENTENCING ON THE FIRST OFFEN…
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Lipscomb v. State, 573 So. 2d 429 (Fla. 5th DCA 1991)…"... sentencing guidelines are designed to aid the judge in the sentencing decision and are not intended to usurp judicial discretion_” . Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984). . 475 So. 2d 1218, 1220 (Fla.1985). . Wesson v. State, 535 So. 2d 717 (Fla. 5th DCA 1989), quashed, 559 So. 2d 1100 (Fla. 1990); Hamilton v. State, 533 So. 2d 926 (Fla. 5th DCA 1988), quashed, 548 So. 2d 234 (Fla.1989); Eldridge v. State, 531 So. 2d 741 (Fla. 5th DCA 1988), quashed, 545 So. 2d 1356 (Fla.1989); Young v…
Authorities Cited
- Bernhine W. Young v. State, 519 So. 2d 719 (Fla. 5th DCA 1988)
- Jock Everett Riggins v. State, 477 So. 2d 663 (Fla. 5th DCA 1985)
- Eldridge v. State, 531 So. 2d 741 (Fla. 5th DCA 1988)
- Hamilton v. State, 533 So. 2d 926 (Fla. 5th DCA 1988)