DERRICK J. WESSON, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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A departure sentence on one offense cannot be based on the defendant's commission of a second offense for which the defendant has not yet been convicted at the time of sentencing for the first offense.
The defendant was placed on probation for grand theft of a motor vehicle. While on probation, he was arrested for a second grand theft offense, though…
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SHAW, Justice.
We have for review Wesson v. State, 535 So. 2d 717, 718 (Fla. 5th DCA 1988), to answer the following certified question:
CAN A DEPARTURE SENTENCE ON ONE OFFENSE BE BASED ON THE DEFENDANT’S COMMISSION OF A SECOND OR SUBSEQUENT OFFENSE AS TO WHICH, AT THE TIME OF SENTENCING ON THE FIRST OFFENSE, THE DEFENDANT HAS NOT BEEN CONVICTED?
We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer in the negative and quash the decision of the district court.
Wesson pled guilty to grand theft of a motor vehicle and was placed on probation. Following his arrest (without conviction) for a second grand-theft offense while on probation, the court revoked his probation and departed from the guidelines range for the following reasons:
1. Defendant committed a new substantive offense of grand theft second degree of a motor vehicle while on this probation for the offense of the grand theft second degree of a motor vehicle.
2. Defendant has had one previous violation on an earlier grand theft probation.
Wesson, 535 So. 2d at 718 (footnote omitted). The district court affirmed, but certified the above question.
In Lambert v. State, 545 So. 2d 838 (Fla.1989), we held that factors related to probation violation cannot be used as grounds for departure. In the same case, we supplied a negative answer to the question certified herein by ruling that conduct relating to offenses without conviction cannot support departure at original sentencing proceedings or at resentencing following probation violation.
We answer the certified question in the negative. We quash the district court’s decision and remand for resentencing within the guidelines, which may include the discretionary one-cell bump-up provided for in Florida Rule of Criminal Procedure 3.701(d)(14).
It is so ordered.
EHRLICH, C.J., and McDONALD, BARKETT, GRIMES and KOGAN, JJ., concur. OVERTON, J., dissents
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Irizarry v. State, 578 So. 2d 711 (Fla. 3d DCA 1990)…e sentencing guidelines.” Ree v. State, 14 F.L.W. at 565 (emphasis in original; citations omitted). See also Ellis v. State, 559 So. 2d 292 (Fla. 5th DCA 1990); Maddox v. State, 553 So. 2d 1380 (Fla. 5th DCA 1989). More recently, in Wesson v. State, 559 So. 2d 1100 (Fla.1990), the court reversed a departure sentence where one of the reasons for departure was a prior, apparently unrelated, violation of probation. On the basis of Ree and Wesson, we conclude that the second reason for departure is invalid.2 There…
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Brawn v. State, 582 So. 2d 50 (Fla. 5th DCA 1991)…al court obviously disbelieved Brawn’s testimony and perceived that he lied under oath. However, Brawn was not prosecuted for perjury. The guidelines do not allow departures based on criminal conduct not resulting in conviction. See Wesson v. State, 559 So. 2d 1100 (Fla.1990). A trial court may not aggravate a sentence based only on a subjective belief that a defendant lied under oath. See Irwin v. State, 479 So. 2d 153 (Fla. 2d DCA 1985), review denied, 488 So. 2d 830 (Fla.1986); Agatone v. State, 474 So. 2d…
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Lipscomb v. State, 573 So. 2d 429 (Fla. 5th DCA 1991)…d the judge in the sentencing decision and are not intended to usurp judicial discretion_” . Hendrix v. State, 455 So. 2d 449 (Fla. 5th DCA 1984). . 475 So. 2d 1218, 1220 (Fla.1985). . Wesson v. State, 535 So. 2d 717 (Fla. 5th DCA 1989), quashed, 559 So. 2d 1100 (Fla. 1990); Hamilton v. State, 533 So. 2d 926 (Fla. 5th DCA 1988), quashed, 548 So. 2d 234 (Fla.1989); Eldridge v. State, 531 So. 2d 741 (Fla. 5th DCA 1988), quashed, 545 So. 2d 1356 (Fla.1989); Young v. State, 519 So. 2d 719 (Fla. 5th DCA 1988), q…
Authorities Cited
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- Wesson v. State, 535 So. 2d 717 (Fla. 5th DCA 1989)