RUSSELL AMBLER MAGUIRE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the probation condition was not unconstitutionally vague under the circumstances and affirmed the sentence, including the departure from guidelines.
Appellant was convicted of handling and fondling a child and placed on probation with a condition forbidding unsupervised contact with minors. His pro…
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PER CURIAM.
Appellant, convicted of handling and fondling a child under the age of fourteen, raises two points on appeal, the first of which we find has no merit and the second of which we certify as a question of great public importance.
In 1986, appellant was sentenced to ten years of probation. In July of 1988, appellant’s probation was revoked and he was sentenced to fifteen years, suspended to thirty months incarceration with the remaining twelve-and-one-half years to be served on probation. Included in the probation order was a provision forbidding appellant from having unsupervised contact with minors.
In October of 1990, the court sentenced appellant on the basis of a violation of his probation to nine years incarceration plus three years probation, again with the probation condition that appellant not have any unsupervised contact with minors.
Although appellant argues that the condition of probation is unconstitutionally vague and must be stricken, we believe that, under the circumstances of this case, the restriction was not overly vague.
Appellant also argues that the court improperly departed from the guidelines when it sentenced him to nine years incarceration plus three years probation. He maintains that a second violation of probation does not constitute a valid basis for departure beyond the one-cell bump allowed under the guidelines. This court has certified this question to the Supreme Court. See Moten v. State, 579 So. 2d 916 (Fla. 2d DCA 1991).
As in Moten, we affirm the judgment and sentence, including the departure, and certify to the Florida Supreme Court the following question of great public importance:
DOES A SECOND VIOLATION OF PROBATION CONSTITUTE A VALID BASIS FOR A DEPARTURE SENTENCE BEYOND THE ONE-CELL DEPARTURE PROVIDED IN THE SENTENCING GUIDELINES?
CAMPBELL, A.C.J., and LEHAN and THREADGILL, JJ., concur.
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Maguire v. State, 594 So. 2d 306 (Fla. 1992)…PER CURIAM. We review Maguire v. State, 586 So. 2d 1268 (Fla. 2d D.C.A.1991), in which the district court of appeal certified the following as a question of great public importance: DOES A SECOND VIOLATION OF PROBATION CONSTITUTE A VALID BASIS FOR A DEPARTURE SENTENCE BEYOND THE ONE-CELL DEPARTURE PROV…
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Graham v. State, 658 So. 2d 642 (Fla. 5th DCA 1995)…il appears to go beyond reasonable limits. STRIKE special condition of probation; REMAND to trial court for reconsideration. DAUKSCH, J., concurs. GRIFFIN, J., concurs in result without opinion. . § 800.04, Fla.Stat. (1987). . Maguire v. State, 586 So. 2d 1268 (Fla. 2d DCA 1991), quashed on other grounds, 594 So. 2d 306 (Fla. 1992).…
Authorities Cited
- Leola A. Knight v. State, 579 So. 2d 916 (Fla. 1st DCA 1991)
- Moten v. State, 579 So. 2d 916 (Fla. 2d DCA 1991)