ROBERTO L. BETANCOURT, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A youthful offender's sentence of four years incarceration plus two years community control was reversed because it exceeded the sentencing guidelines maximum without written reasons for departure. The court held that community control must be aggregated with incarceration when determining whether a sentence complies with sentencing guidelines.
The sentence must be reversed because the combination of four years incarceration and two years community control exceeds the recommended guidelines sentence and constitutes a departure without written reasons. Community control is not a non-incarcerative sanction and must be aggregated with incarceration when evaluating guideline compliance. The case is remanded for resentencing within the guidelines.
[1] A youthful offender sentence that exceeds the maximum disposition authorized under the sentencing guidelines is invalid unless the trial judge provides written reasons ju…
[2] Community control, when aggregated with a period of incarceration, constitutes a departure sentence if the combined term exceeds the recommended guidelines sentence.
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Join FLexlaw to unlock all legal intelligence“the Act also limits a youthful offender sentence to the maximum disposition authorized under the sentencing guidelines, 'unless reasons are explained in writing by the trial judge which reasonably justify departure.'”
Establishes the statutory requirement that any departure from sentencing guidelines must be justified in writing
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Join FLexlaw to unlock all legal intelligenceBetancourt was convicted of armed robbery with a deadly weapon and sentenced as a youthful offender to a split sentence of four years incarceration fo…
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COPE, Judge.
Appellant youthful offender challenges his sentence on the ground that it exceeds the maximum permitted under the sentencing guidelines, without the required statement of reasons for departure. We agree that the sentence under review must be reversed.
Betancourt was convicted of armed robbery with a deadly weapon. He was sentenced as a youthful offender to a split sentence of four years’ incarceration followed by two years of community control. See § 958.04(2)(c), Fla.Stat. (1987). There is no indication the trial court considered the sentence to depart from the sentencing guidelines and no reasons for departure were given.
While the Youthful Offender Act authorizes split sentences of the type imposed here, id., the Act also limits a youthful offender sentence to the maximum disposition authorized under the sentencing guidelines, “unless reasons are explained in writing by the trial judge which reasonably justify departure.” § 958.04(3), Fla.Stat. (1987). The intent is to assure that a youthful offender disposition does not result in a longer period of incarceration than would have been true under a conventional adult sentence. See State v. Weston, 510 So. 2d 1001, 1003 (Fla. 3d DCA 1987). In the present case the sentencing guidelines called for three and one-half to four and one-half years’ incarceration. The issue is whether Betancourt’s two years of community control must be aggregated with the four years of incarceration for purposes of the sentencing guidelines. The state urges that community control is non-incarcerative in nature and that Betanc-ourt’s sentence is authorized by Putt v. State, 527 So. 2d 914 (Fla. 3d DCA 1988). Putt holds a split sentence of incarceration and probation is permissible so long as the incarcerative portion is within the guidelines range, and the total sanction (incarceration and probation) does not exceed the term provided by general law. Id. at 915.
The state’s contention cannot survive State v. Mestas, 507 So. 2d 587 (Fla.1987) (community control more severe alternative than probation; not a nonstate prison sanction). Community control “constitutes a departure sentence when the period of incarceration and community control exceeds the recommended guidelines sentence.” Dyer v. State, 534 So. 2d 843, 844 n. 2 (Fla. 5th DCA 1988) (citations omitted); see Johnson v. State, 511 So. 2d 748, 749 & n. 1 (Fla. 5th DCA 1987) (probation and community control not interchangeable under the guidelines).
Since the combination of incarceration and community control exceeds the recommended guidelines sentence, it is a departure sentence without written reasons, and Betancourt must therefore be resentenced.
Betancourt requests directions that on remand the trial court sentence within the guidelines. We believe that such an instruction is required by Harrison v. State, 523 So. 2d 726, 727 (Fla. 3d DCA 1988). We acknowledge that our rule conflicts with that followed in the Second and Fifth Districts. See Dyer v. State, 534 So. 2d at 844 (trial judge who originally thought he or she was entering a guidelines sentence can, on remand, be allowed to depart and provide written reasons); Waldron v. State, 529 So. 2d 772, 774 (Fla. 2d DCA 1988) (en banc) (same).
Accordingly we reverse the sentence and remand for resentencing within the guidelines.
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Citator
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State v. Betancourt, 552 So. 2d 1107 (Fla. 1989)…OVERTON, Justice. This cause is before us on petition to review Betancourt v. State, 550 So. 2d 1121 (Fla. 3d DCA 1989). The district court reversed Betancourt’s sentence, finding that the trial judge had departed from the sentencing guidelines without written reasons, and directed that Betancourt be re-sentenced within the guidelines range on rema…
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Stanley v. State, 580 So. 2d 349 (Fla. 4th DCA 1991)…ing as the sentence imposed departed from the guidelines. The trial judge did not give any written reasons because he did not realize that imposing community control in addition to jail time would result in a departure sentence. Betancourt v. State, 550 So. 2d 1121, 1122 (Fla. 3d DCA), rev’d on other grounds, 552 So. 2d 1107 (Fla.1989) (citing State v. Mestas, 507 So. 2d 587 (Fla.1987)). On remand the trial judge may impose a departure sentence if he deems it appropriate and gives contemporaneous [*350] writte…
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Jones v. State, 582 So. 2d 181 (Fla. 4th DCA 1991)…ntence of four years in prison followed by two years of community control as an upward departure from the sentencing guidelines not supported by written reasons. See State v. Betancourt, 552 So. 2d 1107 (Fla.), approving in part Betancourt v. State, 550 So. 2d 1121 (Fla. 3d DCA 1989); State v. Mestas, 507 So. 2d 587 (Fla.1987). Our review of the record leads us to conclude that the trial court did not realize that the sentence was a departure. Accordingly, on remand, the trial court shall either set forth vali…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Mestas, 507 So. 2d 587 (Fla. 1987)
- Waldron v. State, 529 So. 2d 772 (Fla. 2d DCA 1988)
- Harrison v. State, 523 So. 2d 726 (Fla. 3d DCA 1988)
- Putt v. State, 527 So. 2d 914 (Fla. 3d DCA 1988)
- State v. Weston, 510 So. 2d 1001 (Fla. 3d DCA 1987)
- Dyer v. State, 534 So. 2d 843 (Fla. 5th DCA 1988)
- Taylor v. State, 511 So. 2d 748 (Fla. 5th DCA 1987)