JOHN STAFFORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Stafford appealed his five-year sentence for burglary and probation violation, arguing the trial court improperly used juvenile offenses in the sentencing scoresheet on remand after this court had already vacated his original sentence for exceeding statutory maximums and improper juvenile conviction scoring.
The trial court erred in making the 1987 conviction the primary offense on resentencing. Under Rule 3.701(d)(5), Florida Rules of Criminal Procedure, a previously suspended conviction with revoked probation cannot be considered an additional offense at resentencing; therefore, it cannot be designated as the primary offense either. The sentence must be vacated and remanded with juvenile offenses deleted from the scoresheet.
[1] A prior offense for which probation was suspended and subsequently revoked based on a new criminal offense must be scored as "prior record" and not as an "additional offe…
[2] An offense that is scored as "prior record" cannot be considered the "primary" offense for sentencing purposes when a new substantive offense is before the court.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“For any offense where sentence was previously suspended pursuant to the imposition of probation and such offense is now before the court for sentencing, upon a revocation of that probation based upon a subsequent criminal offense (which subsequent offense is also before the court for sentencing at the same time), the earlier offense shall be scored as "prior record" and not as "additional offense."”
The rule from Florida Rules of Criminal Procedure that governs how previously suspended convictions with revoked probation must be treated in resentencing.
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Join FLexlaw to unlock all legal intelligenceIn 1987, Stafford pled guilty to armed burglary and grand theft and was placed on probation. In 1989, he pled guilty to burglary of a dwelling and vio…
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HARRIS, Judge.
In 1987 John Stafford pled guilty to armed burglary and grand theft. He was placed on probation. In 1989 Stafford pled guilty to burglary of a dwelling and violation of probation. He was sentenced to a concurrent 5⅛⅛ year sentence on both the burglary of a dwelling charge (second degree felony) and grand theft (third degree felony). He appealed claiming the trial court exceeded the maximum five year penalty for a third degree felony and used a score sheet which improperly scored juvenile offenses occurring more than three years before the new substantive offense.
This court agreed and in Stafford v. State, 561 So. 2d 32 (Fla. 5th DCA 1990) vacated the sentence because the maximum sentence for a third degree felony was exceeded and because the score sheet was improperly prepared and remanded for re-sentencing.
On resentencing the court reduced the sentence to five years but, instead of correcting the scoresheet to remove the juvenile convictions, determined that the original 1987 conviction (for which Stafford was placed on probation) should be considered as the primary offense. Since the juvenile offenses occurred within three years of the 1987 offense, the court continued to score them on the scoresheet. This was error. Committee note (d)(5) to Rule 3.701 Florida rules of Criminal Procedure provides:
For any offense where sentence was previously suspended pursuant to the imposition of probation and such offense is now before the court for sentencing, upon a revocation of that probation based upon a subsequent criminal offense (which subsequent offense is also before the court for sentencing at the same time), the earlier offense shall be scored as “prior record” and not as “additional offense.”
Since the original 1987 offense cannot be considered as an “additional offense” at the later sentencing for a new substantive offense, we hold that it cannot be the “primary” offense at said sentencing. Sentence VACATED and REMANDED for resentencing after deleting the juvenile offenses from the scoresheet.
GOSHORN and GRIFFIN, JJ., concur.
PER CURIAM.
We grant the State’s motion for rehearing for the purpose of certifying the following question to the supreme court:
IN VIEW OF THE 1986 AMENDMENT TO THE COMMITTEE NOTE TO FLA. R.CRIM.P. 3.701(d)(5), MUST THE TRIAL COURTS SCORE AN OFFENSE FOR WHICH THE DEFENDANT WAS ON PROBATION AS “PRIOR RECORD” AT A VIOLATION OF PROBATION HEARING INVOLVING NEW SUBSTANTIVE OFFENSES?
It is only because we acknowledge the importance of this issue in criminal sentencing that we certify the question. It appears to us that since violation of probation is not a crime in Florida and since the defendant was previously “convicted” of the offense for which he is on probation, such previous offense cannot be an “offense at conviction” for the new substantive offense nor can it be the primary offense at any subsequent sentencing.
Rehearing is GRANTED; Question CERTIFIED.
. GOSHORN, HARRIS and GRIFFIN, JJ., concur.
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State v. Stafford, 593 So. 2d 496 (Fla. 1992)…GRIMES, Justice. We review Stafford v. State, 573 So. 2d 884 (Fla. 5th DCA 1990), in which the court certified the following question to be of great public importance: IN VIEW OF THE 1986 AMENDMENT TO THE COMMITTEE NOTE TO FLA. R.CRIM.P. 3.701(d)(5), MUST THE TRIAL COURTS SCORE AN OFFENSE FOR WHICH THE DEFEN…1 / 2
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Fletcher v. State, 593 So. 2d 514 (Fla. 5th DCA 1991)…d appellant to five years imprisonment on the aggravated assault (third degree felony), followed by a new 15-year term of probation on the original burglary charge. Fletcher appeals this sentence and we reverse on the authority of Stafford v. State, 573 So. 2d 884 (Fla. 5th DCA 1991). It was error to score the 1987 burglary as “the primary offense.” In addition, the new 15 year probation sentence on the second degree felony, after Fletcher had served three years in prison, also was error. We reject the sugge…1 / 2
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Ludeman v. State, 595 So. 2d 978 (Fla. 5th DCA 1992)…as an “additional offense at conviction.”4 Certain other offenses were scored as prior record.5 The defendant appeals, contending the trial court erred in scoring the earlier burglary offense as the “primary offense,” relying on Stafford v. State, 573 So. 2d 884 (Fla. 5th DCA 1991). When a defendant has pending before the court for sentencing6 at, or [*980] about7 the same time, two or more offenses under the guidelines sentencing rule the first determination to make is which scoresheet out of the nine off…1 / 2
Authorities Cited
- Stafford v. State, 561 So. 2d 32 (Fla. 5th DCA 1990)
- Phelps v. State, 561 So. 2d 32 (Fla. 2d DCA 1990)