STATE OF FLORIDA, PETITIONER,
v.
LOUIS K. JOHNSON, RESPONDENT
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The Florida Supreme Court held that Lambert v. State fully overruled State v. Pentaude, clarifying that trial courts cannot depart from sentencing guidelines based on new criminal conduct committed while on probation, even if the conduct is serious or no conviction is obtained. The decision resolves a conflict among appellate decisions regarding the scope of guideline departures in probation violation cases.
Lambert fully overruled Pentaude. Trial courts cannot depart from sentencing guidelines based on new criminal conduct committed during probation, regardless of whether the conduct is serious or a conviction is obtained. Such departures are limited to recommitting the defendant to any period not exceeding the remaining balance of the withheld or suspended portion of the original sentence.
[1] A trial court's authority to depart from sentencing guidelines for probation violations is limited by the remaining balance of the withheld or suspended portion of the or…
[2] New criminal conduct, regardless of conviction, may be used for departure from sentencing guidelines.
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Join FLexlaw to unlock all legal intelligence“to any period of time not exceeding the remaining balance of the withheld or suspended portion of the original sentence, provided that the total period of incarceration, including time already served, may not exceed the one-cell upward increase permitted by Florida Rule of Criminal Procedure 3.701(d)14. Any further departure for violation of probation is not allowed.”
Establishes the strict limitation on sentencing authority in probation violation cases as approved by the Court.
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Join FLexlaw to unlock all legal intelligenceJohnson pleaded guilty to shooting into an occupied conveyance and received a split sentence of five and one-half years. After serving 271 days, he wa…
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PER CURIAM.
This is a petition to review Johnson v. State, 557 So. 2d 203 (Fla. 5th DCA 1990), which certified the following question as being one of great public importance:
WHETHER LAMBERT V. STATE, 545 S0.2D 838 (FLA.1989) OVERRULED STATE V. PENTAUDE, 500 S0.2D 526 (FLA.1987) OR MERELY RECEDED TO THE EXTENT THAT NEW CRIMINAL CONDUCT, WHETHER A CONVICTION IS OBTAINED OR NOT, MAY NOT BE USED FOR DEPARTURE?
Id. at 205. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. The question concerns the discretionary authority of a trial judge to depart from the sentencing guidelines when a defendant has violated his or her probation. In this instance, Johnson initially pleaded guilty to shooting into an occupied conveyance and was given a true split sentence of five and one-half years with a provision that, after serving two and one-half years, the balance of his sentence would be suspended and he would be placed on three years’ probation. Johnson was released from prison after serving 271 days. Seven months later, he was charged with violating his probation for failure to submit monthly reports, possession of a firearm or weapon by a convicted felon, and possession of cocaine. Johnson pleaded no contest to these violations. Johnson was then resentenced because of the violation of probation to fifteen years’ incarceration with the provision that, after serving ten years, the remainder would be suspended and he would be placed on probation.
The reasons for the departure, which were not reduced to writing, included that (1) the offenses were serious and egregious; (2) the timing of the violations in relation to his release from prison indicated no deterrent effect on Johnson; and (3) these violations show a continuing and persistent pattern of criminal activity. The district court reversed, stating that the trial court is limited to recommitting this defendant
“to any period of time not exceeding the remaining balance of the withheld or suspended portion of the original sentence, provided that the total period of incarceration, including time already served, may not exceed the one-cell upward increase permitted by Florida Rule of Criminal Procedure 3.701(d)14. Any further departure for violation of probation is not allowed.”
Johnson, 557 So. 2d at 204 (quoting Franklin v. State, 545 So. 2d 851, 852 (Fla.1989), and citing Poore v. State, 531 So. 2d 161 (Fla.1988)).
In certifying the above question, the district court has given us an opportunity to examine our Lambert, Franklin, and Poore decisions. The state suggests that we limit our Lambert decision to allow a trial court to depart from the permitted range and, if the noncriminal probation violations are not minor and are sufficiently egregious, impose any sentence within the statutory limit. This construction would require us to overrule both Franklin and Poore. We reject this construction. It would be incongruous to permit guideline departures for noncriminal probation violations but prohibit departures for new criminal conduct. We answer the certified question by stating that Lambert fully overruled Pentaude. We approve the decision below.
It is so ordered.
SHAW, C.J., and BARKETT, GRIMES, KOGAN and HARDING, JJ., concur. OVERTON and McDONALD, JJ., concur specially with an opinion.
[*274] OVERTON, Justice,
specially concurring.
I concur only because I am bound by precedent. In Franklin v. State, 545 So. 2d 851 (Fla.1989), Lambert v. State, 545 So. 2d 838 (Fla.1989), and Poore v. State, 531 So. 2d 161 (Fla.1988), this Court firmly established the legal principles in this area of criminal law. While I prefer the view expressed in State v. Pentaude, 500 So. 2d 526 (Fla.1987), as explained in my dissent in Lambert, that case is no longer the law.
McDONALD, Justice,
specially concurring.
This was originally a split sentence. After Johnson served the incarcerative portion of that sentence, was placed on probation for the suspended portion of the sentence, and violated that probation, he then may be required to serve the remainder of his original sentence, but no more. Poore v. State, 531 So. 2d 161 (Fla.1988). Neither Lambert v. State, 545 So. 2d 838 (Fla.1989), nor State v. Pentaude, 500 So. 2d 526 (Fla.1987), is implicated in this instance.
Cases With Similar Vibessemantic neighbors from the corpus
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Cited By
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Emmett William Baker v. State, 619 So. 2d 411 (Fla. 2d DCA 1993)…nically, the written sentence does not conform to the oral pronouncement. In this case the punishment imposed and the future punishment for any additional violation of probation would seem to be identical under either approach. See State v. Johnson, 585 So. 2d 272 (Fla.1991); Franklin v. State, 545 So. 2d 851 (Fla.1989). In order to avoid any possible confusion, and in light of our disposition on the condition of probation, on remand the sentence should be corrected. The trial court is authorized to modify th…
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Isabelle Rodriguez v. State, 645 So. 2d 98 (Fla. 3d DCA 1994)…trial court may not impose a sentence exceeding the one cell upward departure permitted by Rule 3.701(d)(14) unless the excess departure is based on valid reasons which existed at the time the defendant was placed on probation. See State v. Johnson, 585 So. 2d 272 (Fla.1991); Williams v. State, 581 So. 2d 144 (Fla.1991); Lambert v. State, 545 So. 2d 838 (Fla.1989). It is clear the trial judge used the new criminal offense of conspiracy to commit murder as the basis for imposing the extra one cell departure. T…
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Tito v. State, 593 So. 2d 284 (Fla. 2d DCA 1992)…nal Procedure 3.701(d)(14) and that no further departure upon violation of probation or community control is allowed except for valid reasons which existed at the time the defendant was placed on probation or community control. See State v. Johnson, 585 So. 2d 272 (Fla.1991); Williams v. State, 581 So. 2d 144 (Fla.1991). In determining the one cell bump-up in Case 1 and Case 2, the trial court must use [*286] the original guidelines scoresheet in each of those cases. Manuel v. State, 582 So. 2d 823 (Fla. 2d D…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Poore v. State, 531 So. 2d 161 (Fla. 1988)
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- Franklin v. State, 545 So. 2d 851 (Fla. 1989)
- State v. Pentaude, 500 So. 2d 526 (Fla. 1987)
- Lavaughn Boggs v. State, 557 So. 2d 203 (Fla. 2d DCA 1990)
- Johnson v. State, 557 So. 2d 203 (Fla. 5th DCA 1990)