JAMES HOLLOMAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Holloman appeals his departure sentence for burglary imposed after violating probation. The trial court improperly used a new sentencing guideline scoresheet rather than the original scoresheet when resentencing him following the probation violation, resulting in a ten-year sentence that exceeded the permitted range without written reasons for departure.
The trial court erred by using a new scoresheet at the probation violation sentencing hearing; the original scoresheet must be used when resentencing following probation revocation. The ten-year sentence exceeded the one-cell bump-up permitted range and constituted a departure sentence without written reasons, requiring reversal and remand for resentencing.
[1] A trial court may not impose a total sanction for a split sentence that exceeds the statutory maximum term provided by general law.
[2] A sentence imposed after revocation of probation must not exceed the total guideline sentence unless written reasons for the departure are provided.
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Join FLexlaw to unlock all legal intelligence“It is well established that the trial court must use the original scoresheet at sentencing following a revocation of probation or community control.”
Establishes the fundamental error in the trial court's approach and the controlling legal standard.
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Join FLexlaw to unlock all legal intelligenceHolloman was convicted of burglary in Case No. 87-5369 and sentenced to four years incarceration plus three years probation under a scoresheet yieldin…
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PER CURIAM.
Appellant, James Holloman, timely appeals a departure sentence. In Case No. 87-5369 appellant was charged by information with burglary of a structure. He entered a plea of nolo contendere after which he was adjudicated guilty and sentenced to a term of four years incarceration followed by three years probation with credit for time served. His sentencing guideline scoresheet for that offense totalled 103 points yielding a recommended guideline sentence of three and one-half to four and one-half years and a permitted range of two and one-half to five and one-half years. See Fla.R.Crim.P. 3.988(e).
In Case No. 91-2457 appellant was again charged with burglary of a structure while on probation for the previous Case No. 87-5369. He later pled nolo contendere to burglary of a structure and to violating his probation. He was adjudicated guilty of burglary of a structure in Case No. 87-5369 and sentenced to a term of ten years incarceration. At sentencing, the trial court used a new sentencing guideline scoresheet totalling 161 points and yielding a recommended guideline sentence of seven to nine years and a permitted range of five and one-half to twelve years. See Fla. R.Crim.P. 3.988(e). Both parties agreed to the accuracy of the scoresheet at the hearing. In Case No. 91-2457 appellant was sentenced as an habitual offender to a term of ten years incarceration.
Appellant contends on appeal that the ten-year sentence imposed in Case No. 87-5369 after violating his probation exceeds the one-cell bump-up permitted range and is therefore a departure sentence without written reasons. We agree. It is well established that the trial court must use the original scoresheet at sentencing following a revocation of probation or community control. Tito v. State, 593 So. 2d 284 (Fla. 2d DCA 1992); Manuel v. State, 582 So. 2d 823 (Fla. 2d DCA 1991); Harris v. State, 574 So. 2d 1211 (Fla. 2d DCA), dismissed, 581 So. 2d 1310 (Fla.1991); Pfeiffer v. State, 568 So. 2d 530 (Fla. 1st DCA 1990); Graham v. State, 559 So. 2d 343 (Fla. 4th DCA 1990). Because the trial court in the present case used a new scoresheet at appellant’s probation violation sentencing hearing, the cause should be reversed and remanded for resentencing pursuant to the original scoresheet.
The record also indicates that the trial court was not aware that it was imposing a departure sentence. The court is therefore permitted on remand to consider whether departure is appropriate and, if so, to set forth valid reasons for departure. State v. Betancourt, 552 So. 2d 1107 (Fla.1989). Otherwise, it may impose a sentence in the original cell or in the next higher cell, including the permitted range, without providing written reasons for departure. Brown v. State, 581 So. 2d 936 (Fla. 1st DCA 1991). See also Manuel.
REVERSED and REMANDED.
DAUKSCH, COWART and PETERSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rice v. State, 622 So. 2d 1129 (Fla. 5th DCA 1993)…the guidelines permitted range (7 to 17 years of incarceration) on the scoresheet prepared for the new offense. Upon remand, the court may consider whether departure is appropriate. State v. Betancourt, 552 So. 2d 1107 (Fla.1989); Holloman v. State, 600 So. 2d 522 (Fla. 5th DCA 1992). We also note that a sentence within the permitted range of 372 to 7 years on the original scoresheet would be impermissible in this case because Rice committed the offense before the guidelines amendment authorized a “permitted…
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Harris v. State, 771 So. 2d 565 (Fla. 5th DCA 2000)…ceeds the statutory maximum. When sentencing after a violation of probation, the trial court must use the original scoresheet to determine the appropriate sentence. See Parrish v. State, 617 So. 2d 1170, 1170 (Fla. 5th DCA 1993); Holloman v. State, 600 So. 2d 522 (Fla. 5th DCA 1992). Normally, a defendant’s guideline sentence may be increased by one cell for each violation of probation. See Williams v. State, 594 So. 2d 273 (Fla.1992); Poore v. State, 531 So. 2d 161, 163 n. 1 (Fla.1988). If probation is viol…
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Parrish v. State, 617 So. 2d 1170 (Fla. 5th DCA 1993)…sed, updated sentencing guideline scoresheet to find the proper allowable sentence. This was error. The original scoresheet should have been used; the one prepared and used at his original sentencing hearing when he got probation. Holloman v. State, 600 So. 2d 522 (Fla. 5th DCA 1992). SENTENCE VACATED; REMANDED for RESENTENCING. W. SHARP and PETERSON, JJ., concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Betancourt, 552 So. 2d 1107 (Fla. 1989)
- Graham v. State, 559 So. 2d 343 (Fla. 4th DCA 1990)
- Manuel v. State, 582 So. 2d 823 (Fla. 2d DCA 1991)
- Harris v. State, 574 So. 2d 1211 (Fla. 2d DCA 1991)
- Pfeiffer v. State, 568 So. 2d 530 (Fla. 1st DCA 1990)
- Chuck Brown v. State, 581 So. 2d 936 (Fla. 1st DCA 1991)
- Tito v. State, 593 So. 2d 284 (Fla. 2d DCA 1992)