JIMMY JONES SCOTT, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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The court held that the portion of Chapter 87-110 amending section 921.001(5) is not applicable to sentences for offenses committed before July 1, 1987, and that a conviction for a subsequent criminal act upon revocation of probation may not justify a departure from sentencing guidelines beyond a one-cell increase.
The case involves two certified questions from the Fourth District Court of Appeal regarding the application of sentencing guidelines to offenses comm…
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PER CURIAM.
We have for review Scott v. State, 531 So. 2d 1068 (Fla. 4th DCA 1988), which certified the following questions of great public importance:
1. Is that portion of Chapter 87-110, Laws of Florida, which amends section 921.001(5), Florida Statutes, applicable to appellate review of sentences imposed for offenses committed prior to July 1, 1987?
2. Upon revocation of probation because of the commission of a subsequent criminal act, may the conviction for the subsequent criminal act be utilized as a justification for departing from the sentencing guidelines?
Id. at 1068-69. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We have answered the first certified question in the negative in State v. McGriff, 537 So. 2d 107 (Fla.1989). The second certified question has been answered with a qualified negative in Lambert v. State, 545 So. 2d 838, 841 (Fla.1989). Accord Franklin v. State, 545 So. 2d 851, 853 (Fla.1989). In Lambert we held that a departure based on violation of probation may not exceed the one-cell upward departure permitted by the sentencing guidelines. Fla.R.Crim.P. 3.701(d)(14).
Accordingly, we quash the opinion below and remand for reconsideration in light of our holdings in McGriff and Lambert.
It is so ordered.
EHRLICH, C.J., and OVERTON, SHAW, BARKETT, GRIMES and KOGAN, JJ., concur. McDONALD, J., concurs as to the first question, but dissents as to the second question.
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Ellis v. State, 559 So. 2d 292 (Fla. 5th DCA 1990)…ure, the substantial and egregious nature of the probation violation, the failure of past rehabilitation, and the fact that defendant committed the offense of grand theft while on probation for committing grand theft are invalid. See Scott v. State, 549 So. 2d 1385 (Fla.1989); Franklin v. State, 545 So. 2d 851 (Fla.1989); Lambert v. State, 545 So. 2d 838 (Fla.1989). The fourth reason for departure is the timing of the offenses and the fifth reason is defendant’s escalating, persistent and continuing pattern o…
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Patterson v. State, 566 So. 2d 609 (Fla. 4th DCA 1990)…was prepared for, or used in, the sentencing. See State v. Paul, 537 So. 2d 702 (Fla. 4th DCA 1989). Therefore, the appellant’s sentence is vacated and we remand for resentencing for a term not to exceed a one cell upward departure. Scott v. State, 549 So. 2d 1385 (Fla.1989). GLICKSTEIN, GUNTHER and STONE, JJ., concur.…
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Mallory v. State, 554 So. 2d 635 (Fla. 4th DCA 1989)…th a one cell increase for the violation of probation, a maximum sentence of nine years. The trial court imposed a 10 year sentence and must be reversed for exceeding the one cell upward increase permitted for violation of probation. Scott v. State, 549 So. 2d 1385 (Fla.1989); Lambert v. State, 545 So. 2d 838 (Fla.1989); Franklin v. State, 545 So. 2d 851 (Fla.1989). The state concedes this error and the sentence imposed for violation of probation is REVERSED and REMANDED for RE-SENTENCING. WALDEN, WARNER a…
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
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- Franklin v. State, 545 So. 2d 851 (Fla. 1989)
- State v. McGRIFF, 537 So. 2d 107 (Fla. 1989)
- State v. Schwartz, 531 So. 2d 1068 (Fla. 4th DCA 1988)
- Scott v. State, 531 So. 2d 1068 (Fla. 4th DCA 1988)