CHARLES TRUE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 1990-05-02
Nos. 89-2159 & 89-2171
DELL and WARNER, JJ., concur., DELL, WARNER and GARRETT, JJ., concur.
564 So. 2d 1104 Florida District Court of Appeal, Fourth District (1990) Positive Treatment
Cited by 8 cases

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Synopsis

Charles True appeals his robbery and grand theft sentences, arguing they exceed Florida sentencing guidelines. The court reverses and remands for resentencing because the trial judge improperly applied the guidelines scoresheet for a probation violation offense rather than the primary offense that originally placed appellant on probation.


Holding

The trial judge erred by using a scoresheet based on the offense causing the probation violation rather than the primary offense that originally placed appellant on probation. The sentences exceed the guidelines and were imposed without written reasons for upward departure. At resentencing, the trial judge must impose either the recommended or permitted guideline sentence.


Headnotes

[1] A trial court must use a scoresheet based on the primary offense that caused a defendant to be placed on probation when determining sentences for probation violations.

[2] When resentencing a defendant for probation violations, the trial court must impose a sentence within the recommended or permitted guideline range for the original offens…

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Key Quotes

“The trial judge used a scoresheet based on the offense which caused appellant to violate probation. A scoresheet for the primary offense that caused appellant to be placed on probation should have been used.”

Establishes the core error—improper scoresheet application when resentencing for probation violation

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Facts & Procedural History

In January 1989, appellant pled guilty to robbery and grand theft and was sentenced to three years probation. About ten days later, appellant violated…

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Opinion of the Court
GARRETT, Judge. PER CURIAM.

GARRETT, Judge.

Appellant seeks review of his robbery and grand theft sentences. He claims the sentences exceed the guidelines. The state concedes error. In January of 1989, appellant pled guilty to the charges. He was placed on three years probation. About ten days later, appellant violated his probation. The trial judge gave appellant a twelve year jail sentence for the robbery and five year jail sentence for the grand theft.

We reverse. The trial judge used a scoresheet based on the offense which caused appellant to violate probation. A scoresheet for the primary offense that caused appellant to be placed on probation should have been used. Lambert v. State, 545 So. 2d 838 (Fla.1989).

Accordingly, we reverse appellant’s sentence and remand for resentencing.1

DELL and WARNER, JJ., concur. ON MOTION FOR CLARIFICATION

PER CURIAM.

Sua sponte we treat the state’s motion for rehearing as a motion for clarification and clarify our opinion as follows:

The state initially conceded error, but now argues that no error occurred.

The appellate record has been supplemented with the single scoresheet that the trial judge used to sentence appellant in five different cases including the two cases involved in this appeal. The scoresheet reads in part:

Primary offense at conviction, one 2nd degree count circled.

Additional offense at conviction, three 2nd degree counts and one 3rd degree count circled.

Prior record, one 2nd degree count and one 3rd degree count circled.

For the primary offense of robbery in case no. 89-4300CF appellant’s sentence was twelve years in state prison.

Appellant’s sentences for the additional offenses were twelve years in state prison for the aggravated battery in 89-3285CF, and in 89-2897CF twelve years in state prison for the robbery and five years in state prison for the burglary.

On May 30, 1990, another panel of this court per curiam affirmed the convictions and sentences in 89-4300CF, 89-2897CF and 89-3285CF. Appellant also received twelve years in state prison for the robbery conviction in 88-20660CF and five years in state prison for the grand theft conviction in 88-24028CF. These are the sentences which are the subject of this appeal.

The sentences in 88-20660CF and 88-24028CF exceed the guidelines and no written reasons were given for the upward departure sentences. When originally sentenced in January of 1989 for the robbery and grand theft convictions appellant’s scoresheet points indicated a recommended jail sentence of two and a half to three and a half years and a permitted sentence of community control or one to four and a half years in prison. The trial judge chose to impose a downward departure sentence of three years probation. In July of 1989, when appellant was convicted of violating probation, he could have been “bumped up” one cell to the recommended three and a half to four and a half years in prison or the permitted two and a half to five and a half years in prison. See Peters v. State, 581 So. 2d 121, 122-23 (Fla.1988); Washington v. State, 564 So. 2d 168 (Fla. 5th DCA 1990).

At resentencing, the trial judge must impose either the recommended or permitted guideline sentence for the robbery and grand theft convictions of this appeal. See Pope v. State, 561 So. 2d 554 (Fla.1990).

Therefore, we clarify the last sentence of the next to last paragraph of our opinion as follows: Reference to the guidelines ranges on the scoresheet for the primary offense that caused appellant to be placed on probation should have been made in order to determine the recommended or permitted “bump up” sentences.

DELL, WARNER and GARRETT, JJ., concur. . We note that appellant committed the robbery and grand theft in October of 1988. Therefore, appellant’s sentences are subject to the permitted range of the guidelines, not just the recommended range. § 921.0015, Fla.Stat. (Supp. 1988); Fla.R.Crim.P. 3.701(d)(8) and 3.988(c).


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Louie Anthony Sellers v. State, 578 So. 2d 339 (Fla. 1st DCA 1991)
    …olating community control or probation is based on the permitted range shown on the original guidelines scoresheet 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 reje…
  • Tito v. State, 593 So. 2d 284 (Fla. 2d DCA 1992)
    …act that it is resentencing in these cases at the same time it is imposing an original sentence in another case. Although these events may occur at the same time, we view them as separate events for guidelines sentencing purposes. See True v. State, 564 So. 2d 1104 (Fla. 4th DCA 1990) (opinion on motion for clarification). With respect to the habitual felony offender sentence in Case 3, that sentence is improper because the statutory requirement of two prior convictions was not met. § 775.084(1), Fla.Stat. (1…
  • Regan v. State, 576 So. 2d 1385 (Fla. 4th DCA 1991)
    …the one cell “bump up” from the original guidelines range allowed under Florida Rule of Criminal Procedure 3.701(d)(14). We agree based on Franklin v. State, 545 So. 2d 851 (Fla.1989); Lambert v. State, 545 So. 2d 838 (Fla.1989); and True v. State, 564 So. 2d 1104 (Fla. 4th DCA 1990). We therefore remand to the trial court for resentencing of appellant in case no. 89-980 to a term not to exceed the one-cell “bump up” of 3 and V2 years. Reverse and remand. LETTS, GUNTHER and WARNER, JJ., concur.…

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