REBECCA DERICCIULLI, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1992-01-17
No. 90-03006
PATTERSON, J., concurs., DANAHY, A.C.J., concurs specially.
592 So. 2d 1197 Florida District Court of Appeal, Second District (1992) Positive Treatment
Cited by 2 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Rebecca DeRicculli appeals her probation revocation sentence, challenging the trial court's imposition of a 4½-year incarceration sentence (suspended for community control and probation). The appellate court affirmed the probation violation but reversed the sentencing determination, finding the trial court miscalculated the permitted guidelines range and improperly imposed a departure sentence based on anticipated future violations.


Holding

The court affirmed that the probation violation was properly found, but reversed the sentencing on two grounds: (1) the trial court miscalculated the permitted sentencing range, believing it extended to 4½ years when it actually extended only to 3½ years; and (2) the trial court improperly imposed a departure sentence suspended on the condition of future violations before it had knowledge of what acts might justify such a departure, which violated the reasoning in Williams v. State.


Headnotes

[1] A trial court may impose a sentence within the permitted range of the next higher sentencing cell when a defendant commits an offense after July 1, 1988, and has a prior…

[2] A sentence that is suspended and replaced with a lesser sanction, such as community control followed by probation, is considered a sentence within the guidelines, even if…

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Key Quotes

“The court correctly determined that the one-cell bump-up for an offense occurring after July 1, 1988, allowed it to impose a sentence within the permitted range of the next higher cell. Jackson v. State, 556 So. 2d 513 (Fla. 2d DCA 1990). When it imposed the sentence, however, the trial court mistakenly believed that the permitted range of the next higher cell extended to 4V2 years when it actually extended to only 3V2 years.”

Establishes that while a one-cell bump-up was permissible, the trial court miscalculated the range.

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Facts & Procedural History

DeRicculli violated several conditions of her probation during April and May 1990. Following an evidentiary hearing, the trial court found the violati…

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Opinion of the Court
ALTENBERND, Judge.

ALTENBERND, Judge.

The defendant appeals her judgment and sentence entered after a revocation of probation. We affirm the judgment, but reverse the sentence.

The state alleged that the defendant failed to comply with several conditions of her probation during April and May of 1990. Following an evidentiary hearing, the trial court properly determined that the conditions of probation had been violated. This was the defendant’s first violation of probation for this offense. Without any bump, her scoresheet recommended and permitted any nonstate prison sanction. The court correctly determined that the one-cell bump-up for an offense occurring after July 1, 1988, allowed it to impose a sentence within the permitted range of the next higher cell. Jackson v. State, 556 So. 2d 513 (Fla. 2d DCA 1990). When it imposed the sentence, however, the trial court mistakenly believed that the permitted range of the next higher cell extended to 4V2 years when it actually extended to only 3V2 years.

The trial court sentenced the defendant to 4V2 years’ incarceration, but suspended this sentence and imposed 1 year of community control followed by 3¥2 years’ probation. Thus, the sentence the defendant is actually serving is a sentence within the guidelines, although the incarceration is a departure. The defendant can only receive the 4y2-year sentence if she again violates the terms of community control or probation.

The state argues that this sentencing method is acceptable in light of our decisions in Williams v. State, 559 So. 2d 680 (Fla. 2d DCA 1990) (en banc), review granted, 75,919 (Fla. May 14, 1990), and Williams v. State, 568 So. 2d 1276 (Fla. 2d DCA 1990), review granted, No. 76,016 (Fla. May 24, 1990). Its argument seems to have two prongs. First, it reasons that the defendant has already committed a “second violation” of probation. Although it is true that the defendant violated several conditions of her probation, this was only her first adjudication on a violation of probation. The rule in Williams is limited to cases involving two or more successive adjudications.

Second, the state suggests that the 4V2-year sentence could eventually be imposed under Williams if the defendant violated her current terms of community control or probation. In other words, the 4V2-year sentence will become operative only if the defendant in fact has two successive adjudications on violation of probation. If the trial court could impose this sentence at the next sentencing hearing, the state suggests that this sentence merely informs the defendant in advance of the consequences of a future violation. While there is some logic to this approach, it certainly is not the reasoning employed by the trial court. Moreover, it is a departure sentence imposed before the trial court knows the acts that might justify the departure. We will not authorize this extension of the rule this court announced in Williams.

Affirmed in part, reversed in part, and remanded.

PATTERSON, J., concurs.

DANAHY, A.C.J., concurs specially.

Concurrence
DANAHY, Acting Chief Judge,

DANAHY, Acting Chief Judge,

concurring.

I agree with the result reached by the majority because I believe our supreme court has now made it clear that upon violation of probation or community control a trial court may not impose a sentence exceeding the one cell upward increase permitted by Florida Rule of Criminal 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).


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Citator

Cited By

  • Salemi v. State, 636 So. 2d 824 (Fla. 2d DCA 1994)
    …range was twelve to seventeen years.1 Thus, Mr. Salemi’s suspended sentence was technically a one-cell upward departure from the guidelines, although suspension had the effect of providing a significant downward departure. See DeRicciulli v. State, 592 So. 2d 1197 (Fla. 2d DCA 1992). Thereafter, Mr. Salemi violated community control and received three concurrent terms of twenty years’ imprisonment. See Salemi v. State, 573 So. 2d 117 (Fla. 2d DCA 1991). Mr. Salemi now claims that the supreme court’s subseque…

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