NEIL J. BARBA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed revocation of probation but reversed the departure sentence for a child abuse violation, holding that the trial court's reasons for exceeding guideline ranges were legally insufficient.
A trial court cannot depart upward from sentencing guidelines based on the probationer's violation of probation itself or the temporal proximity of conduct to release from incarceration.
[1] Temporal proximity of criminal conduct to release from incarceration and factors relating to probation violation itself do not constitute valid reasons for departure from…
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Join FLexlaw to unlock all legal intelligence“Neither factors relating to the violation of probation itself nor the fact that the conduct occurred soon after the release from incarceration constitute a valid reason for departure.”
Court explaining why the trial court's departure reasoning was invalid
Barba pleaded guilty to fondling a child under sixteen and received 4.5 years in prison plus 10.5 years' probation. While on probation, he violated it…
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PER CURIAM.
Neil J. Barba appeals both the order revoking his probation and his sentence of seven years in prison followed by eight years’ probation. We affirm the order of revocation. Because appellant’s sentence represents a departure of greater than a one-cell bump-up for a violation of probation, we must reverse and remand for re-sentencing within the guidelines. Appellant had pleaded guilty to fondling and handling a child under the age of sixteen, and had received a sentence of four and one-half years in prison followed by ten and one-half years’ probation. The offense was committed on June 26, 1988. While serving his probation, appellant violated his probation by initiating contact with a minor. The trial court’s sole reason for departure from the next higher cell’s range of four and one-half to five and one-half years’ incarceration was appellant’s continuation of similar conduct after being on probation for a short period of time after his prison sentence. This reason is invalid. Neither factors relating to the violation of probation itself nor the fact that the conduct occurred soon after the release from incarceration constitute a valid reason for departure. See Lambert v. State, 545 So. 2d 838 (Fla.1989); cf Barfield v. State, 594 So. 2d 259 (Fla.1992) (temporal proximity of crimes alone does not provide valid reason for departure). Accordingly, we reverse the sentence and remand for resentencing within the guidelines.
Affirmed in part; reversed in part; and remanded for resentencing.
SCHOONOVER, C.J., and HALL and ALTENBERND, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Tesney v. State, 647 So. 2d 222 (Fla. 2d DCA 1994)…ty to score the new offenses on the sentencing guidelines seoresheet. All four reasons clearly relate to the basis for Tesney’s violation of probation and are thus invalid. Shaw v. State, 615 So. 2d 209 (Fla. 2d DCA 1993). See also Barba v. State, 600 So. 2d 554, 555 (Fla. 2d DCA 1992) (“Neither factors relating to the violation of probation itself nor the fact that the conduct occurred soon after the release from incarceration constitute a valid reason for departure.”). Additionally, the first reason, whic…
Authorities Cited
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- Tobias Barfield v. State, 594 So. 2d 259 (Fla. 1992)