JACQUELINE R. COLLINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Collins appealed her sentences for violating community control and possessing cocaine with intent to distribute, arguing the combined sentences exceeded the maximum permitted under Florida's sentencing guidelines. The court agreed, finding that the 3.5 years incarceration followed by 2 years community control exceeded the guidelines' maximum permitted sanction, and reversed for resentencing.
The sentences are illegal and must be reversed because they exceed the maximum permitted guidelines sanction. The 3.5 years incarceration followed by 2 years community control exceeds the permitted range of 'any nonstate prison sanction or community control or 1-3½ years incarceration' under the guidelines scoresheet.
[1] A sentencing plan is illegal if the total of combined sentences exceeds the maximum permitted sentence under the guidelines, absent written departure reasons.
[2] Sentencing guidelines require the use of one scoresheet covering all offenses pending before the court for sentencing.
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“A sentence must be imposed for each offense, but the total of the combined sentences cannot exceed the total guideline sentence, unless supported by written departure reasons.”
Establishes the fundamental rule governing combined sentences under Florida guidelines
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Join FLexlaw to unlock all legal intelligenceIn 1989, Collins was placed on five-year probation for marijuana sale. In July 1990, she violated probation and was placed on two years community cont…
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JOANOS, Chief Judge.
Appellant seeks review of the sentences imposed upon her convictions for violation of community control and possession of cocaine" with intent to distribute. Specifically, appellant contends the sentencing plan is illegal, because the total of the combined sentences exceeds the maximum permitted sentence under the guidelines. The state agrees that remand for resentencing is required. We reverse.
In 1989, appellant was placed on probation for five years for sale of marijuana to an undercover police officer. In July 1990, she violated probation, and was placed on two years community control, to be followed by the balance of her probation (approximately four years). In November 1990, appellant was charged with a new offense — possession of cocaine with intent to distribute. In February 1991, she pled no contest to violation of the community control imposed in connection with the 1989 case, and to possession of cocaine in the 1990 case. In May 1991, the 1989 community control was revoked, and appellant was sentenced to 3½ years incarceration, to be followed by the balance of the probation imposed in November 1989. For the 1990 conviction, appellant was placed on two years community control, to be followed by three years probation, the 1990 community control sentence to be served consecutively to the 1989 period of incarceration. The sanctions imposed for the 1989 and 1990 convictions resulted in a total incarcera-tive/community control sanction of 5V2 years.
The sentencing guidelines require the use of one guidelines scoresheet covering all offenses pending before the court for sentencing. Fla.R.Crim.P. 3.701(d)1; Roberson v. State, 555 So. 2d 976 (Fla. 1st DCA 1990). A sentence must be imposed for each offense, but the total of the combined sentences cannot exceed the total guideline sentence, unless supported by written departure reasons. Fla.R.Crim.P. 3.701(d)11; Roberson, 555 So. 2d at 979. However, after revocation of probation or community control, the trial court may impose sentence in accordance with the original cell, or with the next higher cell, without a written departure reason. Fla. R.Crim.P. 3.701(d)14; Brown v. State, 581 So. 2d 936 (Fla. 1st DCA 1991).
In VanKooten v. State, 522 So. 2d 830, 831 (Fla.1988), the supreme court ruled that when so provided by the guidelines cell, either community control or incarceration may be imposed, but not both. Subsequently, in Ewing v. State, 526 So. 2d 1029 (Fla. 1st DCA 1988), this court construed the VanKooten proscription as applicable only where the combined sentences exceeded the maximum period of incarceration permitted under the guidelines, reasoning that a departure sentence does not result where the combined sanctions do not exceed the maximum guidelines incarcerative period. Accord Yukanovitz v. State, 547 So. 2d 722 (Fla. 1st DCA 1989); Reese v. State, 535 So. 2d 676 (Fla. 5th DCA 1988).
The sentencing guidelines scoresheet used in this case contained a total score of sixty-four points, placing appellant in the recommended sentencing range of any non-state prison sanction. See Fla.R.Crim.P. 3.988(g). The next higher cell carried a recommended sentencing range of community control or 12-30 months incarceration, with a permitted range of “any nonstate prison sanction or community control or 1-3½ years incarceration.” Id. Thus, appellant’s sentence of incarceration for 3⅛⅛ years, to be followed by a 2-year community control sentence, exceeds the maximum permitted guidelines sanction.1
Accordingly, the sentences are reversed and remanded for resentencing within the sentencing guidelines range.
ZEHMER and KAHN, JJ., concur. . The one-cell increase without written reasons for departure authorized by Florida Rule of Criminal Procedure 3.701(d) 14, includes the "permitted" as well as the recommended guidelines range. See Brown v. State, 581 So. 2d 936, 937 (Fla. 1st DCA 1991).
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Felty v. State, 630 So. 2d 1092 (Fla. 1994)…t 831. The court below construed the VanKooten proscription as applicable only where the combined sentences of imprisonment and [*1093] community control exceeded the maximum period of incarceration permitted under the guidelines. Collins v. State, 596 So. 2d 1209 (Fla. 1st DCA 1992); Ewing v. State, 526 So. 2d 1029 (Fla. 1st DCA 1988). In this case, Felty’s combined sentences of imprisonment and community control did not exceed the permitted range of the sentencing guidelines. While there is no doubt that t…
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Reginell Leetrez Gilyard v. State, 636 So. 2d 134 (Fla. 2d DCA 1994)…630 So. 2d 1059 (Fla.1994), and Felty v. State, 630 So. 2d 1092 (Fla.1994). In these eases the court found it necessary to reaffirm the rule in VanKooten because of the varying interpretations the district courts had given it. See Collins v. State, 596 So. 2d 1209 (Fla. 1st DCA 1992), disapproved in State v. Davis, 630 So. 2d 1059 (Fla.1994); and Felty v. State, 616 So. 2d 88 (Fla. 2d DCA 1993), quashed, 630 So. 2d 1092 (Fla.1994). The court noted in Felty that the factor that had caused several of the distr…
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Smith v. State, 605 So. 2d 1002 (Fla. 1st DCA 1992)…tates “community control or incarceration,” a court is not precluded from utilizing a combination of incarceration and community control, if the total sentence does not exceed the recommended incarcerative period. Ewing at 1030. In Collins v. State, 596 So. 2d 1209 (Fla. 1st DCA1992), the appellant pled nolo contendere to violating community control, and to a new offense. The trial court revoked community control, and sentenced appellant to 372 years incarceration on the original offense, and a consecutive 2-y…
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
- State v. VanKOOTEN, 522 So. 2d 830 (Fla. 1988)
- State v. Bodine, 522 So. 2d 830 (Fla. 1988)
- Keidrick Ewing v. State, 526 So. 2d 1029 (Fla. 1st DCA 1988)
- Chuck Brown v. State, 581 So. 2d 936 (Fla. 1st DCA 1991)
- Roberson v. State, 555 So. 2d 976 (Fla. 1st DCA 1990)
- Reese v. State, 535 So. 2d 676 (Fla. 5th DCA 1988)
- Yukanovitz v. State, 547 So. 2d 722 (Fla. 1st DCA 1989)