LEVI DENEGAL, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Denegal pleaded guilty to grand theft and received probation, then violated it and was sentenced to community control, then violated that and was sentenced to 3.5 years in prison. The court held that sentencing guidelines permit only one cell increase per violation, and the trial court erred by imposing a sentence two cells above the original offense guideline range.
The court held that the imposition of a sentence constituting a two-cell upward departure from the recommended range for the original offense, without giving reasons for the departure, is improper. Rule 3.701(d)(14) requires that the original offense range be used as the starting point, permitting only one cell increase per violation.
[1] Sentences imposed after revocation of probation or community control must be in accordance with the guidelines.
[2] A sentence imposed after revocation of probation or community control may be increased to the next higher guideline cell without requiring a reason for departure.
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Join FLexlaw to unlock all legal intelligence“Sentences imposed after revocation of probation or community control must be in accordance with the guidelines. The sentence imposed after revocation of probation or community control may be included within the original cell (guidelines range) or may be increased, to the next higher cell (guidelines range) without requiring a reason for departure.”
States the applicable sentencing guideline rule that limits increases to one cell per violation
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Join FLexlaw to unlock all legal intelligenceDenegal pleaded guilty to grand theft and was placed on 3 years' probation. After violating probation, he was sentenced to 2 years' community control …
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GOSHORN, Judge.
Denegal pled guilty to grand theft and was placed on 3 years’ probation. After violating his probation, Denegal was sentenced to 2 years’ community control, based upon a guideline recommendation of 12 to 30 months in prison or community control. This recommendation reflected the one cell bump-up permitted after a violation of probation. Fla.R.Crim.P. 3.701(d)(14). Denegal then violated his community control and was sentenced to 3V2 years in the Department of Corrections. This sentence represented a one cell increase from the community control guideline cell and a two cell increase from the presumptive guideline sentence for the original offense of grand theft. Denegal contends that this two cell departure from the recommended guideline sentence for the original conviction of grand theft is error. We agree and reverse.
Rule 3.701(d)(14), Florida Rules of Criminal Procedure provides:
14. Sentences imposed after revocation of probation or community control must be in accordance with the guidelines. The sentence imposed after revocation of probation or community control may be included within the original cell (guidelines range) or may be increased, to the next higher cell (guidelines range) without requiring a reason for departure.1
The issue thus presented is whether the sentencing guidelines permit second or successive one cell increases or whether the court must use the original offense range as its starting point when applying the permitted one cell increase. The Fourth District addressed this question in Torres v. State, 517 So. 2d 796 (Fla. 4th DCA 1988). Our sister court observed that Rule 3.701(d)(14) clearly requires that “sentences imposed after revocation of probation or community control must be in accordance with the guidelines,” and held
it was error for the trial court to use the violation of probation range rather than the original offense range when determining appellant’s [guideline] sentence.
Id. at 798. Similar reasoning was used in Hosmer v. State, 523 So. 2d 184 (Fla. 1st DCA 1988) (plea bargain for a one-cell departure sentence cannot thereafter be used as a mechanism for a two cell increase from original guideline range after violation of probation or community control) and Lockett v. State, 516 So. 2d 46 (Fla. 4th DCA 1987) (violation of community control did not justify a two-cell upward departure from original guideline range even though original community control sentence was an aggravated sentence imposed pursuant to a plea agreement).
We agree with the above cited cases and hold that the imposition of a sentence which constitutes a two-cell upward departure from the recommended range for the original offense, without giving reasons for the departure, is improper. Accordingly, Denegal’s sentence is reversed and the cause is remanded for resentencing.
Sentence REVERSED; REMANDED.
COWART and PETERSON, JJ., concur. . There is no indication in the record that the trial court either thought it was exceeding the guidelines or intended to do so. No reasons were given justifying a guideline departure sentence.
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Louie Anthony Sellers v. State, 578 So. 2d 339 (Fla. 1st DCA 1991)…et used at the first sentencing. Peters v. State, 531 So. 2d 121 (Fla.1988); Franklin v. State, 545 So. 2d 851 (Fla.1989); True v. State, 564 So. 2d 1104 (Fla. 4th DCA 1990); Washington v. State, 564 So. 2d 168 (Fla. 5th DCA 1990); Denegal v. State, 562 So. 2d 828 (Fla. 5th DCA 1990); Hosmer v. State, 523 So. 2d 184 (Fla. 1st DCA 1988); Lockett v. State, 516 So. 2d 46, 47 (Fla. 4th DCA 1987). We reject this argument. Finally, Sellers contends that the trial court erred in imposing a period of probation in th…
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