STATE OF FLORIDA, PETITIONER,
v.
HAROLD TUTHILL, RESPONDENT
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The Florida Supreme Court answered a certified question regarding whether a trial judge may depart from sentencing guidelines based on probation violations that constitute substantive crimes, even without a conviction on the underlying substantive charges. The Court held that such departures are impermissible without a conviction.
No. A conviction on the underlying substantive charge is required before a probation violation can be used as a reason to depart from the sentencing guidelines. The Court answered the certified question in the negative and quashed the district court's approval of the sentence.
[1] A trial judge may depart from the presumptive guidelines range and impose an appropriate sentence within the statutory limit when the underlying reasons for violation of…
[2] A conviction on a new substantive count is not required before that count can be used as a reason to depart from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“WHERE A TRIAL JUDGE FINDS THAT THE UNDERLYING REASONS FOR VIOLATION OF PROBATION CONSTITUTE MORE THAN A MINOR INFRACTION AND ARE SUBSTANTIVE VIOLATIONS, MAY HE DEPART FROM THE PRESUMPTIVE GUIDELINES RANGE AND IMPOSE AN APPROPRIATE SENTENCE WITHIN THE STATUTORY LIMIT EVEN THOUGH THE DEFENDANT HAS NOT- BEEN "CONVICTED" OF THE CRIMES WHICH THE TRIAL JUDGE CONCLUDED CONSTITUTED A VIOLATION OF HIS PROBATION?”
The certified question presented to the Court regarding departure from sentencing guidelines in probation violation cases
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Join FLexlaw to unlock all legal intelligenceTuthill pleaded nolo contendere in 1983 to a lewd and lascivious act in the presence of a child and received four years of probation. In 1984, he was …
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PER CURIAM.
We have for review the opinion of the Third District Court of Appeal in Tuthill v. State, 518 So. 2d 1300 (Fla. 3d DCA 1988), which is in direct and express conflict with Lambert v. State, 517 So. 2d 133 (Fla. 4th DCA 1988), and Young v. State, 519 So. 2d 719 (Fla. 5th DCA 1988). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We accepted review in both Young and Lambert based on the following certified question:
WHERE A TRIAL JUDGE FINDS THAT THE UNDERLYING REASONS FOR VIOLATION OF PROBATION CONSTITUTE MORE THAN A MINOR INFRACTION AND ARE SUBSTANTIVE VIOLATIONS, MAY HE DEPART FROM THE PRESUMPTIVE GUIDELINES RANGE AND IMPOSE AN APPROPRIATE SENTENCE WITHIN THE STATUTORY LIMIT EVEN THOUGH THE DEFENDANT HAS NOT-BEEN “CONVICTED” OF THE CRIMES WHICH THE TRIAL JUDGE CONCLUDED CONSTITUTED A VIOLATION OF HIS PROBATION?
Young, 519 So. 2d at 722.* The case before us involves this identical issue. In 1983, Tuthill pled nolo contendere to a charge of a lewd and lascivious act in the presence of a child and was sentenced to four years of probation. Then, in 1984, Tuthill was charged by affidavit with violating his probation by committing a lewd and lascivious act upon a minor. The trial court revoked Tuthill’s probation and sentenced him to fifteen years in prison, and the state entered a nolle prosequi on the new substantive charge.
The third district court remanded for a new sentencing hearing, Tuthill v. State, 478 So. 2d 409 (Fla.1985), and on resentencing the trial court again sentenced Tuthill to fifteen years in prison, using the probation and the violation of probation as the principle reasons for departure. The third district reversed the sentence again, holding that a conviction on the new substantive count was required before it could be used as a reason to depart from the guidelines.
We have recently addressed this issue in Lambert v. State, 545 So. 2d 838 (Fla.1989) (consolidated with Young v. State). In those cases we answered the above-stated certified question in the negative, quashing the district court opinions in both cases. Our decision there controls in this case. Accordingly, we approve the opinion of the third district and remand this case for re-sentencing within the guidelines.
It is so ordered.
EHRLICH, C.J., and SHAW, BARKETT and KOGAN, JJ., concur. *
The Lambert case involves the same certified question differing only in that Lambert’s punishment had been community control rather than probation. Lambert v. State, 517 So. 2d 133, 134 (Fla. 4th DCA 1988).
OVERTON, Justice,
dissenting:
I dissent for the reasons expressed in Lambert v. State, 545 So. 2d 838 (Fla.1989).
McDonald and GRIMES, JJ., dissent.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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REE v. State, 565 So. 2d 1329 (Fla. 1990)…, 476 So. 2d 158 (Fla.1985). We recently have held that any departure sentence for probation violation is impermissible if it exceeds the one-cell increase permitted by the sentencing guidelines. Lambert, 545 So. 2d at 842. Accord State v. Tuthill, 545 So. 2d 850, 851 (Fla.1989); Franklin v. State, 545 So. 2d 851, 852-53 (Fla.1989). The rationale for our holding in Lambert is, first, that the guidelines do not permit departure based on an “offense” of which the defendant may eventually be acquitted. Lambert…
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Christian v. State, 84 So. 3d 437 (Fla. 5th DCA 2012)…cert. denied, 423 U.S. 924, 96 S.Ct. 267, 46 L.Ed.2d 250 (1975). We have never imposed a requirement that the state independently prosecute new criminal charges in order to allege the conduct as a violation of probation. See, e.g., State v. Tuthill, 545 So. 2d 850, 851 (Fla.1989); Swilley, 781 So. 2d at 460. Clearly, if the legislature had intended to add additional procedural or proof requirements to the state’s burden of establishing probationary violations for youthful offenders, whether technical or subst…
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Waymon M. Swilley v. State, 781 So. 2d 458 (Fla. 2d DCA 2001)…n because the State nolle prossed the new charges. We disagree. The filing of a nolle prosequi does not mean that the trial court cannot find that Swilley substantively violated his community control by committing new offenses. Cf. State v. Tuthill, 545 So. 2d 850, 851 (Fla.1989) (holding that [*461] a new criminal offense can constitute a substantive violation of probation for purposes of imposing a guidelines departure sentence even if the State files a nolle prosequi); State v. Jenkins, 762 So. 2d 535, 536…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- Bernhine W. Young v. State, 519 So. 2d 719 (Fla. 5th DCA 1988)
- Lambert v. State, 517 So. 2d 133 (Fla. 4th DCA 1987)
- Tuthill v. State, 518 So. 2d 1300 (Fla. 3d DCA 1987)
- Tuthill v. State, 478 So. 2d 409 (Fla. 3d DCA 1985)