MARVIN A. FURLOW, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Furlow was convicted of multiple drug offenses and initially sentenced under the original guidelines scoresheet. After probation violation, he was resentenced using a new scoresheet with a higher permitted range. The Florida Supreme Court held that the original scoresheet with a one-cell bump-up for probation violation should have been used, and the newer permitted range could not be applied ex post facto to offenses committed before the amendment authorizing it.
The original scoresheet adjusted for the one-cell bump-up permitted by rule for probation violation should have been used for resentencing rather than the new scoresheet. The permitted range on the new scoresheet could not be applied ex post facto to offenses committed in 1986 before the amendment became effective. On remand, Furlow is entitled to full credit against his sentence for properly earned gain time.
[1] A probationary split sentence imposed for a violation of probation should be calculated using the original guidelines score-sheet, adjusted for a one-cell bump-up, rather…
[2] The permitted sentencing range created by an amendment to sentencing guidelines cannot be applied ex post facto to offenses committed prior to the amendment's effective d…
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“The original scoresheet, adjusted for the one cell bump-up permitted by Rule 3.701.d.14. for violation of probation, should have been used for sentencing rather than the new scoresheet.”
Establishes the primary holding that the original scoresheet with probation violation adjustment controls sentencing, not a new amended scoresheet.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFurlow was convicted of multiple offenses including sale of cocaine in two separate cases. His original guidelines scoresheet totaled 165 points with …
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COWART, Judge.
The defendant was convicted of many offenses all scored on one guidelines score-sheet. The scoresheet totalled 165 points and indicated a recommended sentence range of 5V2-7 years incarceration. As to the offense of sale of cocaine contained in Count 1 of Case No. 86-1300 and as to the offense of sale of cocaine contained in Count 1 of Case No. 86-1301, a probationary split sentence was imposed comprised of 5½ years incarceration followed by three years probation. After serving the incar-cerative portion of these sentences the defendant was released on probation and his probation was terminated for violation of conditions not involving a new substantive offense. A new guidelines scoresheet was prepared totalling 220 points and indicating a 9-12 year recommended incarceration range and a 12-17 year permitted incarceration range. The defendant was sentenced to 17 years incarceration and given credit for 922 days.
The defendant filed a Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence alleging his sentence was illegal because: (1) his sentence exceeded the recommended sentencing range under the original guidelines score-sheet plus the one cell bump-up permitted for the violation of probation (Fla.R. Crim.P. 3.701.d.l4.); (2) the permitted range on the new guidelines scoresheet should not have been used because the offense for which he was being sentenced was committed prior to the amendment of guidelines sentencing creating a permitted range; and (3) no reasons for departure were given.
The defendant appeals the denial of this motion.
The original scoresheet, adjusted for the one cell bump-up permitted by Rule 3.701.- d.14. for violation of probation, should have been used for sentencing rather than the new scoresheet. Graham v. State, 559 So. 2d 343 (Fla. 4th DCA 1990); Senior v. State, 502 So. 2d 1360 (Fla. 5th DCA), rev. denied, 511 So. 2d 299 (1987), disapproved of in part, in Goene v. State, 577 So. 2d 1306 (Fla.1991); see also Riggins v. State, 477 So. 2d 663 (Fla. 5th DCA 1985); Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985).
The permitted range on the new score-sheet should not have been used ex post facto to calculate a sentence for the defendant’s offenses which occurred in 1986 prior to the amendment authorizing a permitted range which became effective July 1, 1988.1 Lape v. State, 569 So. 2d 529 (Fla. 5th DCA 1990); Washington v. State, 564 So. 2d 168 (Fla. 5th DCA 1990); Wiggins v. State, 559 So. 2d 262 (Fla. 5th DCA 1990).
When the defendant is resentenced on remand he will be entitled to full credit against his sentence for proper gain time earned. State v. Green, 547 So. 2d 925 (Fla.1989); Johnson v. State, 574 So. 2d 222 (Fla. 5th DCA 1991); Hill v. State, 565 So. 2d 919 (Fla. 5th DCA 1990); Brown v. State, 565 So. 2d 904 (Fla. 5th DCA 1990); Little v. State, 561 So. 2d 442 (Fla. 5th DCA 1990); McLaughlin v. State, 558 So. 2d 1101 (Fla. 5th DCA 1990); Tillman v. State, 552 So. 2d 1187 (Fla. 5th DCA 1989); Kelly v. State, 552 So. 2d 1140 (Fla. 5th DCA 1989); Johnson v. State, 548 So. 2d 1184 (Fla. 5th DCA 1989).
The defendant’s sentences are vacated and the cause remanded for resentencing consistent with this opinion.
SENTENCES VACATED; CAUSE REMANDED.
W. SHARP and PETERSON, JJ„ concur. . See Ch. 88-131, § 1, Laws of Florida; In re Sentencing Guidelines, 522 So. 2d 374 (Fla.1988).
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Daniels v. State, 591 So. 2d 1103 (Fla. 5th DCA 1992)…rceration for the prior burglary offense. The habitual offender sentence is affirmed, but the split sentence for the prior burglary is reversed and remanded for resentencing. See Lam [*1105] bert v. State, 545 So. 2d 838 (Fla.1989); Furlow v. State, 579 So. 2d 910 (Fla. 5th DCA 1991) (where a defendant violated probation, his original scoresheet, adjusted for the one cell bump-up, should have been used for sentencing following revocation). REVERSED and REMANDED for re-sentencing. GOSHORN, C.J., and HARRIS a…
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Walfrido Hernandez v. State, 632 So. 2d 246 (Fla. 3d DCA 1994)…t believed that it was imposing a permissible guidelines sentence and did not issue departure reasons. In reality, under substantive law the court could not use the 1988-created permitted range for an offense which occurred in 1986. Furlow v. State, 579 So. 2d 910, 911 (Fla. 5th DCA 1991); see also Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). The trial court had inadvertently imposed a departure sentence without realizing that it had done so. Recognizing that the case fell within th…
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Tierney v. State, 656 So. 2d 553 (Fla. 2d DCA 1995)…mitted prior to the amendment to Florida Rule of Criminal Procedure 3.701, providing for a permitted range in the guidelines. On remand the trial court should use the guidelines in effect at the time the offenses were committed. See Furlow v. State, 579 So. 2d 910 (Fla. 5th DCA 1991).…
Authorities Cited (21 total)
- State v. Green, 547 So. 2d 925 (Fla. 1989)
- Goene v. State, 577 So. 2d 1306 (Fla. 1991)
- Cauthen v. State, 522 So. 2d 374 (Fla. 1988)
- Boldes v. State, 475 So. 2d 1356 (Fla. 5th DCA 1985)
- Graham v. State, 559 So. 2d 343 (Fla. 4th DCA 1990)
- Washington v. State, 564 So. 2d 168 (Fla. 5th DCA 1990)
- Jock Everett Riggins v. State, 477 So. 2d 663 (Fla. 5th DCA 1985)
- Johnson v. State, 574 So. 2d 222 (Fla. 5th DCA 1991)
- Alphonse Kelly v. State, 552 So. 2d 1140 (Fla. 5th DCA 1989)
- Crews v. State, 502 So. 2d 1360 (Fla. 5th DCA 1987)