DONNIE GLENN, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court vacated a ten-year guideline departure sentence for probation violation because the trial judge improperly based the departure on factors related to the violation itself, which is prohibited under Florida law.
A trial court cannot impose a guideline departure sentence based on factors related to the probation violation itself.
[1] A trial court cannot base a guideline departure sentence on factors related to the probation violation itself.
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Join FLexlaw to unlock all legal intelligenceGlenn was sentenced to two years imprisonment plus five years probation for drug convictions in 1987. Forty-one days after release, he violated probat…
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COBB, Judge.
This is an appeal from a guideline departure sentence. In 1987 Glenn was sentenced to two years imprisonment, to be followed by five years probation, for drug-related convictions. Forty-one days after his release from prison, he violated probation by failing to submit his monthly report and by possessing paraphernalia.
The trial judge revoked probation, granted 831 days credit for time served, and imposed a ten-year sentence (the guideline range with the one-cell bump was 2½-3½ years incarceration), and set forth four reasons for departure:
(1) violations are substantial and egre-garious (sic);
(2) timing of violation;
(3) failure of rehabilitation; and
(4) guideline sentence meaningless after credit allowed for time served.
We now know that departure cannot be based on factors related to the violation of probation. Hamilton v. State, 548 So. 2d 234 (Fla.1989); Lambert v. State, 545 So. 2d 838 (Fla.1989); Ree v. State, 14 F.L.W. 565, — So. 2d - (Fla. Nov. 16, 1989); Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989). See also Watson v. State, 558 So. 2d 1038 (Fla. 5th DCA 1990).
Accordingly, the sentence below is vacated and this cause remanded for resentencing within the guidelines.
SENTENCE VACATED; CASE REMANDED FOR RESENTENCING.
GOSHORN and HARRIS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ramsey v. State, 562 So. 2d 394 (Fla. 5th DCA 1990)…6 So. 2d 409 (Fla.1989); Lambert v. State, 545 So. 2d 838 (Fla.1989); Watson v. State, 558 So. 2d 1038 (Fla. 5th DCA 1990); Ricketson v. State, 558 So. 2d 119 (Fla. 5th DCA 1990); Phaneuf v. State, 557 So. 2d 685 (Fla. 5th DCA 1990); Glenn v. State, 557 So. 2d 667 (Fla. 5th DCA 1990); Jackson, supra; Maddox, supra; Teer v. State, 557 So. 2d 910 (Fla. 1st DCA 1990); Perez v. State, 554 So. 2d 14 (Fla. 3d DCA 1989); Banks v. State, 553 So. 2d 759 (Fla. 2d DCA 1989); Ferguson v. State, 550 So. 2d 1176 (Fla. 3d D…
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Lipscomb v. State, 573 So. 2d 429 (Fla. 5th DCA 1991)…838 (Fla.1989); Ramsey v. State, 562 So. 2d 394 (Fla. 5th DCA 1990); Watson v. State, 558 So. 2d 1038 (Fla. 5th DCA 1990); Ricketson v. State, 558 So. 2d 119 (Fla. 5th DCA 1990); Phaneuf v. State, 557 So. 2d 685 (Fla. 5th DCA 1990); Glenn v. State, 557 So. 2d 667 (Fla. 5th DCA 1990); Jackson v. State, 556 So. 2d 813 (Fla. 5th DCA 1990); Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989). . See N. Holten and R. Handberg, Florida’s Sentencing Guidelines Surviving — but just barely, Vol. 73, No. 5 Judicature…
Authorities Cited
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989)
- Hamilton v. State, 548 So. 2d 234 (Fla. 1989)
- Watson v. State, 558 So. 2d 1038 (Fla. 5th DCA 1990)