DWAYNE LEONARD DANIELS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dwayne Daniels was convicted of armed burglary and carrying a concealed weapon, then violated probation by committing another burglary. On appeal, the court found that the trial court exceeded sentencing guidelines when imposing a 10-year sentence for the prior burglary offense and reversed that portion while affirming the habitual offender sentence.
The court agreed that the 10-year sentence for the prior burglary exceeded the maximum guideline sentence. The original scoresheet adjusted for the one-cell bump-up permitted a range of 21/8 to 31/2 years or community control to 1-4.5 years, and the 10-year sentence fell outside this range. The habitual offender sentence was affirmed, but the split sentence for the prior burglary was reversed and remanded for resentencing.
[1] When a defendant violates probation, the trial court may sentence within the recommended range of the original scoresheet, adjusted by a one-cell bump-up.
[2] A trial court may not exceed the permitted sentencing range established by the original scoresheet, even after a probation violation.
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Join FLexlaw to unlock all legal intelligence“Once Daniels admitted violating probation, the trial court was allowed to use the one cell bump-up and sentence him within the recommended range of 21/⅛-31/2 years incarceration, or the permitted range of community control or 1-4½ years incarceration.”
Establishes the proper guideline range available to the trial court when sentencing for probation violation
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Join FLexlaw to unlock all legal intelligenceDaniels was convicted in November 1990 of armed burglary and carrying a concealed weapon and placed on community control followed by probation. He sub…
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PER CURIAM.
In November 1990, Dwayne Leonard Daniels was convicted of armed burglary and carrying a concealed weapon. He was placed on community control to be followed by probation. Daniels subsequently violated probation by committing a new burglary offense, entered a nolo contendere plea to this subsequent offense, and admitted the violation of probation.
He appeared for sentencing in both cases on May 13, 1991. Pursuant to notice, defendant was sentenced as an habitual offender on the subsequent burglary offense to 10 years incarceration. For the prior burglary offense, probation was revoked and defendant was sentenced to a concurrent 10 year term of incarceration to be followed by 15 years probation. For the prior offense of carrying a concealed weapon, defendant was sentenced to time served.
Daniels argues on appeal that the 10 year sentence for the prior burglary offense exceeds the maximum guideline sentence. We agree and reverse. When Daniels was initially sentenced for the prior burglary, the scoresheet reflected a recommended range of community control or 12-30 months incarceration. Once Daniels admitted violating probation, the trial court was allowed to use the one cell bump-up1 and sentence him within the recommended range of 21/⅛-31/2 years incarceration, or the permitted range of community control or 1-4½ years incarceration. See Fla. R.Crim.P. 3.988(e). Since Daniels was adjudicated an habitual offender as to the subsequent burglary offense, thereby removing that offense from guideline consideration,2 there was no need to prepare a new scoresheet. The original scoresheet should have been utilized in sentencing defendant for the prior offenses. The trial court exceeded the guidelines in sentencing defendant to 10 years incarceration 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 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 and PETERSON, JJ., concur. . See Fla.R.Crim.P. 3.701(d)14.
. See § 775.084(4)(e), Fla.Stat. (1989).
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State v. Matthews, 891 So. 2d 479 (Fla. 2004)…to habitual offender sentences.”) (emphasis in original); Strickland v. State, 596 So. 2d 1155, 1156 (Fla. 2d DCA 1992) (stating that in 1988, the habitual offender statute was amended to exempt it from the sentencing guidelines); Daniels v. State, 591 So. 2d 1103, 1104 (Fla. 5th DCA 1992) (noting that once a defendant is adjudicated a habitual offender with regard to an offense, that offense is removed from sentencing guide [*490] lines consideration); Holley v. State, 577 So. 2d 624, 625 (Fla. 1st DCA 1991)…
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Rice v. State, 622 So. 2d 1129 (Fla. 5th DCA 1993)…ce was adjudicated a habitual violent felony offender on the subsequent robbery offense, that offense was removed from guidelines consideration and a scoresheet was not, therefore, necessary. See § 775.-084(4)(e), Fla.Stat. (1991); Daniels v. State, 591 So. 2d 1103 (Fla. 5th DCA 1992) (holding that the trial court should use the original scoresheet to sentence a defendant for violating probation where the defendant is sentenced as a habitual offender on the new substantive offenses, and thus, the trial court d…
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Silliker v. State, 598 So. 2d 133 (Fla. 5th DCA 1992)…een convictions in Case No. 90-16191 should not have been included on the score-sheet. Appellant was adjudicated a habitual felony offender as to the ten felonies thereby removing those convictions from guideline consideration. See Daniels v. State, 591 So. 2d 1103 (Fla. 5th DCA 1992). See also § 775.084(4)(e), Fla.Stat. (1991). It was not necessary to prepare a new scoresheet for the five misdemeanors since those convictions cannot be scored as primary offenses under the guidelines. Because the convictions in…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- Furlow v. State, 579 So. 2d 910 (Fla. 1991)