DONALD BRANTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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.
The court held that probation violations cannot be used as grounds for departure from sentencing guidelines.
The defendant's probation was revoked, and the trial court departed from the sentencing guidelines to impose a longer sentence, citing probation viola…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Fla. R. Crim. P. 3.701(d)(14) cases and more on FLexlaw
DAUKSCH, Judge.
The defendant appeals his sentences imposed after the revocation of his probation in Case No. 86-293, burglary, Case No. 87-1209, burglary and grand theft, and Case No. 87-2162, possession of cocaine and resisting a law enforcement officer with violence. The sentencing guidelines recommendation, after the one cell increase permitted by Rule 3.701(d)(14), was two and one-half to three and one-half years. The trial court departed and sentenced the defendant to fifteen years incarceration in Case No. 86-293, with 206 days credit for time served, five years concurrent incarceration in Case No. 87-2162, with 100 days credit for time served, and three years probation in case No. 87-1209, consecutive to the fifteen years incarceration in Case No. 86-293.
The court gave two written reasons for departure; three violations of probation stemming over a two year period and failure to report upon release from custody in Case Nos. 87-1209 and 87-2162. The character of the probation violations, the number of conditions violated, the number of times the defendant was placed on probation, and the length of time the defendant was on probation before the violation are all valid considerations for departure under State v. Pentaude, 500 So. 2d 526, 528 (Fla.1987). Pentaude was the law at the time of sentencing but the supreme court has receded from Pentaude in Lambert v. State, 545 So. 2d 838 (Fla.1989).
In Lambert it is specifically held “that factors related to violation of probation or community control cannot be used as grounds for departure.”
The sentence is vacated and the case remanded for resentencing of appellant. When sentence is imposed after revocation of probation or community control, an increase to the next higher cell in the guideline range is permitted by Rule 3.701(d)(14) but no departure sentence is permitted for that factor. SENTENCE VACATED; REMANDED.
COBB and COWART, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
-
Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989)…gave five reasons for departure: (1) The defendant’s violation of probation was serious, egregious and substan [*1381] tial not merely technical. This is an insufficient reason under Lambert v. State, 545 So. 2d 838 (Fla.1989) and Branton v. State, 548 So. 2d 882 (Fla. 5th DCA 1989); (2) The defendant committed these offenses of resisting an officer without violence (Case No. 88-7368) while on probation. As these new offenses constituted the violation of the probation in Case No. 84-2533 1 and Case No. 87-6…
-
Kramer v. State, 550 So. 2d 557 (Fla. 5th DCA 1989)…be used as grounds for departure from the recommended guideline sentence range. See, Franklin v. State, 545 So. 2d 851 (Fla.l989); Lambert v. State, 545 So. 2d 838 (Fla.1989). See also Dewberry v. State, 546 So. 2d 409 (Fla.1989); Branton v. State, 548 So. 2d 882 (Fla. 5th DCA 1989). The sentence is vacated and the cause is remanded for resentencing. SENTENCE VACATED; REMANDED. DANIEL, C.J., and SHARP and COWART, JJ., concur.…
-
Johnson v. State, 557 So. 2d 203 (Fla. 5th DCA 1990)…announced would seem to apply only to new criminal conduct violations. This would also explain why the court merely receded from Pentaude rather than overturned it. . But see Kramer v. State, 550 So. 2d 557 (Fla. 5th DCA 1989) and Branton v. State, 548 So. 2d 882 (Fla. 5th DCA 1989).…
Previewing 3 of 12 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)
- State v. Pentaude, 500 So. 2d 526 (Fla. 1987)