JOSHUA BURNETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Burnett appeals departure sentences for multiple cocaine delivery and possession convictions. The court affirms the convictions but remands for correction of sentencing because the trial court imposed a five-and-one-half year prison sentence in the wrong case, when guidelines permitted that term only for the offense where it should have been applied.
The trial court did not impose a true departure sentence and therefore did not need written reasons. However, the five-and-one-half-year prison term was imposed in the wrong case. Because the permitted range of two-and-one-half to five-and-one-half years applied only to case number 89-6955 (the crimes in the other cases predated the permitted range), and the scoresheet reflected case 89-6955 as the primary offense, the five-and-one-half-year sentence should have been imposed in case 89-6955, not case 87-13533.
[1] A sentence imposed above the recommended guidelines range requires written reasons for departure.
[2] A court may consider prior probation violations when determining whether to reinstate probation or impose community control.
Previewing 2 of 5 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 permitted range for appellant's score of 118 points is two-and-one-half to five-and-one-half years.”
Establishes the correct guideline range applicable to Appellant's sentencing calculation.
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Join FLexlaw to unlock all legal intelligenceBurnett was charged with and pled guilty to delivery of cocaine in three separate cases between August 1987 and May 1989. He received various probatio…
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PER CURIAM.
Appellant challenges only the departure sentences imposed upon his conviction for possession of cocaine and delivery of cocaine. We affirm his convictions but remand for correction of his sentence.
Case No. 87-10127:
On August 31, 1987, appellant was charged with delivery of cocaine and pos session of cocaine. Appellant pled guilty to the charge of delivery of cocaine. He was sentenced to two years probation. Subsequently, as a result of his violation of probation, appellant was sentenced to two years community control concurrent to the sentence in case number 87-13533. After a subsequent violation of community control, he was sentenced to two-and-one-half years imprisonment, followed by twelve-and-one-half years probation concurrent to his sentence in case number 87-13533.
Case No. 87-13533:
On November 17, 1987, appellant was charged with delivery of cocaine. He pled guilty and was sentenced to two years community control to be concurrent to his sentence in case number 87-10127. After a violation of community control, he was sentenced to fifteen years probation concurrent to the probation in case number 87-10127, but consecutive to the prison term.
Case No. 89-6955:
On May 23, 1989, appellant was charged with delivery of cocaine. He pled guilty and was sentenced on June 30,1989, to five years probation, consecutive to the prison term.that he was serving and concurrent with his other probation.
On July 24, 1990, after pleading guilty to a violation of probation, appellant was sentenced to five-and-one-half years imprisonment followed by five years probation for case number 87-13533, five years probation for case number 87-10127 and five years probation for case number 89-6955. The terms of probation were to run concurrently with each other but consecutive to the prison term. The guidelines recommendation was for two-and-one-half to three-and-one-half years imprisonment.
Appellant argues that it was error to sentence him above the guidelines recommendation without providing written reasons. However, appellant scored 118 points, which placed him in the third cell of the category seven scoresheet. With the one-cell bump allowed in sentencing after violation of probation, appellant fell into the fourth cell, which has a permitted range of two-and-one-half to five-and-one-half years. Appellant’s scoresheet reflects a guidelines sentence of two-and-one-half to three-and-one-half and a range of community control to five-and-one-half. This is incorrect. The permitted range for appellant’s score of 118 points is two-and-one-half to five-and-one-half years.
The court sentenced appellant to five-and-one-half years in prison, followed by three terms of five years probation to be served concurrent to each other, but consecutive to the prison time. The court did not provide written reasons for departure because it did not intend to impose a departure sentence. When the court indicated that this was appellant’s fourth violation, it was not articulating a reason for departure but was offering the reason that it would not reinstate appellant’s probation or place him on community control as requested by his counsel.
Apparently the court and both counsel were operating under the assumption that the permitted range applied to all three of these cases. However, appellant committed the crimes in case numbers 87-10127 and 87-13533 before the permitted range was in effect. Therefore, the permitted range does not apply to these cases. It does, however, apply to case number 89-6955.
Appellant’s scoresheet reflects that case number 89-6955 was scored as the primary offense at conviction, yet it was in case number 87-13533 where appellant received the five-and-one-half years prison time. Because the five-and-one-half-year sentence is valid for case number 89-6955, and the scoresheet reflects that this was the primary offense at conviction, this court remands for correction of the sentences. The five-and-one-half-year prison term should, on remand, be imposed in case number 89-6955.
SCHOONOVER, C.J., and CAMPBELL and PATTERSON, JJ., concur.
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Brady v. State, 587 So. 2d 617 (Fla. 2d DCA 1991)…offense. No departure reasons were given. It appears that the court believed the sentence was permissible as within the permitted range, however, this was error as the crimes were committed before the permitted range was in effect. Burnett v. State, 584 So. 2d 152 (Fla. 2d DCA 1991). While we agree that the appellant is not entitled to relief of the other grounds raised in his motion, we reverse the denial of the appellant’s motion on the ground discussed above. We remand to the trial court with directions…