JEFFREY JAY PENNINGTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Jeffrey Pennington appeals his sentencing following probation revocation. The First District Court of Appeal affirmed the trial court's departure from sentencing guidelines but certified to the Florida Supreme Court a question of great public importance regarding whether a judge may impose a departure sentence beyond the presumptive guidelines range upon probation revocation based on reasons that would have supported departure at the original sentencing.
The court affirmed Pennington's sentence, holding that the departure sentence was lawful because it was based on reasons unrelated to the acts constituting the probation violation but rather on grounds existing at the time of the original sentencing. However, the court certified a question of great public importance to the Florida Supreme Court regarding the propriety of such departures.
[1] A trial court may depart from sentencing guidelines upon revocation of probation if the grounds for departure existed at the time of the original sentencing, even if thos…
[2] A sentence imposed upon revocation of probation may be based on reasons unrelated to the acts constituting the probation violation, provided those reasons existed at the…
Previewing 2 of 4 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“Since the departure sentence was based upon reasons unrelated to the acts constituting the probation violation, but rather upon grounds that existed at the time of the original sentencing proceeding, appellant's sentence was lawful.”
The court's holding that the sentencing departure was permissible because it rested on pre-existing grounds rather than the probation violation itself.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIn 1987, Pennington was convicted of carrying a concealed firearm (Count IV) and possession of a short-barreled shotgun (Count V). The trial court sen…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Statutory Sentencing Limits cases and more on FLexlaw
PER CURIAM.
Appellee’s motion for rehearing1 is granted, the opinion and decision in this case filed on August 30, 1990, is withdrawn, and the following opinion and decision is substituted for the withdrawn opinion.
In 1987 appellant was convicted, under Count IV of the information, of the offense of carrying a concealed weapon, a firearm, contrary to section 790.01(2), Florida Statutes (1987), and was also convicted under Count V of the offense of possession of a short-barreled shotgun under section 790.-221. At sentencing, the trial court sentenced appellant to five years incarceration for the offense in Count IV; and on Count V, the court withheld adjudication and ordered five years probation, to run consecutively to the sentence under Count IV.
Upon revocation of his probation, the trial court departed from the sentencing guidelines and imposed a sentence of five years incarceration, based upon appellant’s unscored juvenile record.2 Since the departure sentence was based upon reasons unrelated to the acts constituting the probation violation, but rather upon grounds that existed at the time of the original sentencing proceeding, appellant’s sentence was lawful. Williams v. State, 566 So. 2d 299 (Fla. 1st DCA 1990).
However, as we did in Williams, we certify the following question as one of great public importance:
AFTER A TRIAL JUDGE WITHHOLDS IMPOSITION OF SENTENCE AND PLACES A DEFENDANT ON PROBATION, AND THE DEFENDANT SUBSEQUENTLY VIOLATES THAT PROBATION, MAY THE JUDGE, UPON SENTENCING THE DEFENDANT FOR THE ORIGINAL OFFENSE, DEPART FROM THE PRESUMPTIVE GUIDELINES RANGE AND THE ONE-CELL INCREASE FOR VIOLATION OF PROBATION, AND IMPOSE AN APPROPRIATE SENTENCE WITHIN THE STATUTORY LIMIT BASED ON A REASON THAT WOULD HAVE SUPPORTED DEPARTURE HAD THE JUDGE INITIALLY SENTENCED THE DEFENDANT RATHER THAN PLACING HIM ON PROBATION?
AFFIRMED.
BOOTH and SMITH, JJ., and WENTWORTH, Senior Judge, concur. . In its motion for rehearing, the state points out that appellant’s departure sentence upon revocation of his probation was based upon appellant’s prior, unscored juvenile record, rather than upon acts constituting the probation violation. Thus, as the state notes, according to this court’s decision in Williams v. State, 566 So. 2d 299 (Fla. 1st DCA 1990) (question certified), the sentence for the original offense is not limited to the one-cell increase permitted by rule 3.701(d)14, Florida Rules of Criminal Procedure, and the court may impose any sentence that lawfully could have been imposed initially. As noted in our Williams opinion, the Florida Supreme Court’s holdings in Lambert v. State, 545 So. 2d 838 (Fla.1989), and Ree v. State, 565 So. 2d 1329 (Fla.1990), appear to apply only to cases in which the departure sentence is based upon acts constituting the probation violations.
. No contention is made by appellant that the departure reason given by the trial judge is invalid. Although the record does not contain the original guidelines scoresheet, we note the comment by the assistant state attorney, in the probation revocation sentencing transcript, indicating that the trial court also used appellant's unscored juvenile offenses in imposing a departure sentence as to Count IV.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- Williams v. State, 566 So. 2d 299 (Fla. 1st DCA 1990)