RANDY DAVID RICKETSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Randy Ricketson appeals his consecutive five-year sentences imposed for probation violations in two criminal cases. The Florida appellate court upheld the trial court's jurisdiction but reversed the sentences because the judge improperly relied on probation violation history as a reason to depart from sentencing guidelines.
The trial court did not lose jurisdiction because probation violation affidavits were filed before Ricketson completed any probationary period. However, the court erred in imposing sentences departing beyond the one-cell bump-up bracket because it improperly relied on probation violations as the reason for departure.
[1] A trial court retains jurisdiction over a defendant for probation violations if affidavits of violation are filed before the completion of any probationary period.
[2] A trial court cannot impose a departure sentence based on factors relating to the violation of probation or community control.
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Join FLexlaw to unlock all legal intelligence“trial courts cannot use any factor relating to violation of probation or community control in imposing a departure sentence”
Establishes the core legal principle preventing use of probation violations as grounds for sentencing departures
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Join FLexlaw to unlock all legal intelligenceRicketson was on probation in case 81-1347 for burglary and violated probation five times; he also violated probation twice in case 87-2040 for grand …
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W. SHARP, Judge.
Ricketson appeals from his sentences of two consecutive five-year terms of incarceration, imposed in two criminal cases. In case number 81-1347, Ricketson violated the terms of his probation and community control five times; in case number 87-2040, he violated them twice. He argues that the trial court lost jurisdiction over case number 81-1347 because he has been on probation in excess of five years, and five years is the maximum statutory punishment for burglary of an unoccupied structure,1 the offenses involved in that case. We disagree because probation violation affidavits were sworn to and filed in each instance before Ricketson successfully completed any probationary period.2
However, we agree with Ricketson that the trial judge erred in imposing sentences which departed beyond the one cell bump-up. For both cases the bump-up bracket would have been a term of twelve to thirty months. The reasons given for departing were:
In case no. 81-1347-CF-A-Y Defendant violated his probation on five separate occasions. During this time he was sentenced to probation in case no. 82-1267 for sale of marijuana and case no. 87-2040 for grand theft. His current violation is a new grand theft in case no. 88-2130. The Defendant is not suitable for probation. The nature and persistence of his continued violations of supervision require the maximum sentence. It should be noted that he owes significant amounts of restitution that were not paid, although that was not a factor in exceeding the guidelines.
It seems obvious that Ricketson is. completely unamenable to rehabilitation through probation or community control, as demonstrated by his numerous and frequent violations. However, Ricketson had the good fortune to have committed substantive violations of probation and community control before his terms were successfully served. Thus, trial courts cannot use any factor relating to violation of probation or community control in imposing a departure sentence. Ree v. State, 14 F.L.W. 565 (Fla. November 16, 1989); Lambert v. State, 545 So. 2d 838 (Fla.1989); Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989).
This case could well serve to illustrate the need for the legislature to change the guideline rules on departure sentences based on violations of probation. Until then we are bound by stare decisis. Accordingly, we quash the sentences and remand for resentencing within the one cell bump-up bracket.
QUASH SENTENCES; REMAND.
DANIEL, C.J., and COBB, J., concur. . §§ 810.02(3) and 775.082(3)(d), Fla.Stat. (1981).
. Compare Blackburn v. State, 468 So. 2d 517 (Fla. 1st DCA 1985). See State v. Smith, 425 So. 2d 655 (Fla. 5th DCA 1983); White v. State, 410 So. 2d 588 (Fla. 2d DCA 1982); Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981).
Cases With Similar Vibessemantic neighbors from the corpus
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Straughan v. State, 636 So. 2d 845 (Fla. 5th DCA 1994)…mpose any sentence which it might have originally imposed before placing the probationer on probation.... (emphasis supplied) Applying those authorities, this court held in Ramey v. State, 546 So. 2d 1156 (Fla. 5th DCA 1989) and Ricketson v. State, 558 So. 2d 119 (Fla. 5th DCA 1990) that a successive probationary sentence could be imposed following revocation of probation. We rejected the argument in those cases that multiple or successive probationary sentences adding up to more than the maximum statutory s…
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Ramsey v. State, 562 So. 2d 394 (Fla. 5th DCA 1990)…e, 14 F.L.W. 565 (Fla. Nov. 16, 1989); Hamilton v. State, 548 So. 2d 234 (Fla.1989); Dewberry v. State, 546 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 D…
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Lipscomb v. State, 573 So. 2d 429 (Fla. 5th DCA 1991)…ate, 548 So. 2d 234 (Fla.1989); Dewberry v. State, 546 So. 2d 409 (Fla.1989); Lambert v. State, 545 So. 2d 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. Holt…
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)
- Clark v. State, 402 So. 2d 43 (Fla. 4th DCA 1981)
- Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989)
- Dubose v. State, 468 So. 2d 517 (Fla. 1st DCA 1985)
- White v. State, 410 So. 2d 588 (Fla. 2d DCA 1982)
- State v. Smith, 425 So. 2d 655 (Fla. 5th DCA 1983)