LONNIE LEE SMALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lonnie Lee Small appeals his sentencing following revocation of probation on prior drug delivery convictions. The court reverses because Small's prior delivery offenses should have been scored as additional offenses rather than prior record under the then-applicable sentencing guidelines, requiring resentencing with a corrected scoresheet.
The prior delivery offenses should have been scored as additional offenses, not prior record, because they were committed prior to the effective date of the amendment to Florida Rule of Criminal Procedure 3.701(d)(5) requiring scoring of prior offenses as prior record upon revocation of probation.
[1] Prior offenses committed before the effective date of an amendment to the committee note to Florida Rule of Criminal Procedure 3.701(d)(5) requiring scoring of prior offe…
[2] A trial judge may depart beyond the one-cell increase for violation of probation if valid reasons for departure are provided.
Previewing 2 of 3 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“Small contends in this appeal that the prior delivery offenses should have been scored as additional offenses because they were committed in June and July of 1986, prior to the effective date of the amendment to the committee note to Florida Rule of Criminal Procedure 3.701(d)(5), which now requires the scoring of prior offenses as prior record upon revocation of probation. Small's contention is correct.”
Establishes the legal issue and the court's holding on proper scoring of prior offenses under the applicable rule in effect at the time they were committed.
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Join FLexlaw to unlock all legal intelligenceSmall was convicted of five counts of delivery of a controlled substance and sentenced to twenty-one months imprisonment followed by three years proba…
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HALL, Judge.
The appellant, Lonnie Lee Small, challenges the sentence imposed upon him following revocation of the probation portions of his split sentences. We reverse.
Small was convicted of five counts of delivery of a controlled substance and was sentenced to twenty-one months’ imprisonment to be followed by three years’ probation on each count, the sentences to run concurrently. Small was subsequently found to have violated probation by committing murder. The scoresheet prepared upon his conviction for second degree murder reflects that the prior delivery offenses were scored as prior record, resulting in a recommended sentencing range of twenty-two to twenty-seven years’ imprisonment. The trial judge departed to the next cell and sentenced Small to forty years’ imprisonment for his conviction for second degree murder and fifteen years’ imprisonment for the prior delivery offenses.1 The judge listed the following as reasons for departure: “the court order finds defendant has had convictions increasing in severity and frequency. He was out of prison for last sentence only months and still totally ignored the law.”
Small contends in this appeal that the prior delivery offenses should have been scored as additional offenses because they were committed in June and July of 1986, prior to the effective date of the amendment to the committee note to Florida Rule of Criminal Procedure 3.701(d)(5), which now requires the scoring of prior offenses as prior record upon revocation of probation. Small’s contention is correct. Gonzalez v. State, 534 So. 2d 1220 (Fla. 2d DCA 1988); DeVille v. State, 529 So. 2d 319 (Fla. 2d DCA 1988).
We reverse Small’s sentence and remand for correction of Small’s scoresheet in accordance with this opinion. Upon re-sentencing of Small, the trial judge may depart beyond the one cell for violation of probation because the reasons he gave previously are valid. See Williams v. State, 504 So. 2d 392 (Fla.1987); Fuller v. State, 488 So. 2d 594 (Fla. 2d DCA 1986).
Reversed and remanded.
FRANK, A.C.J., and PARKER, J., concur. . The statutory maximum penalty for the second degree felony of delivery of a controlled substance is fifteen years’ imprisonment. § 775.082(3)(c), Fla.Stat. (1985).
Cases With Similar Vibessemantic neighbors from the corpus
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Haynes v. State, 571 So. 2d 1380 (Fla. 2d DCA 1990)…l increase in the recommended sentencing range. Prior offenses committed before the effective date of the 1986 amendment to the committee note to Florida Rule of Criminal Procedure 3.701(d)(5) are to be scored as additional offenses. Small v. State, 547 So. 2d 273 (Fla. 2d DCA 1989). We, accordingly, affirm the appellant’s convictions and remand for the entry of a proper order of revocation and for resen-tencing with a proper scoresheet. Affirmed in part, reversed in part, and remanded. LEHAN and ALTENBERN…
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Miller v. State, 549 So. 2d 1106 (Fla. 2d DCA 1989)…ior to October 1, 1986, which was the effective date of the amendment to the committee note to Florida Rule of Criminal Procedure 3.701(d)(5) now requiring the scoring of pri- or offenses as prior record upon revocation of probation. Small v. State, 547 So. 2d 273 (Fla. 2d DCA 1989); DeVille v. State, 529 So. 2d 319 (Fla. 2d DCA 1988). Appellant’s scoresheet shall be amended accordingly. Appellant also challenges the trial court’s upward departure from the recommended guidelines range. The court enunciated t…
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Lang v. State, 571 So. 2d 487 (Fla. 2d DCA 1990)…nd result was a sentence in the 17-22 year range; this is more than would have been recommended had these offenses been scored as Lang suggests. If Lang’s factual assertions are correct, his argument would appear to have merit. See Small v. State, 547 So. 2d 273 (Fla. 2d DCA 1989); Gonzalez v. State, 534 So. 2d 1220 (Fla. 2d DCA 1988); DeVille v. State, 529 So. 2d 319 (Fla. 2d DCA 1988). Neither the trial court’s order nor its attachments sufficiently refute this portion of Lang’s motion. Accordingly, we re…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Williams v. State, 504 So. 2d 392 (Fla. 1987)
- Fuller v. State, 488 So. 2d 594 (Fla. 2d DCA 1986)
- DeVILLE v. State, 529 So. 2d 319 (Fla. 2d DCA 1988)
- Gonzalez v. State, 534 So. 2d 1220 (Fla. 2d DCA 1988)