MARY ROSE BOWEN A/K/A SUSAN MARIE ALCHERMES A/K/A MARY HOFFMAN A/K/A MARY BARROS A/K/A MARY MALDONADO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a trial court cannot depart from sentencing guidelines based on multiple violations of probation or community control.
The appellant challenged the sentence imposed after her probation was revoked, arguing the trial court erred in exceeding presumptive guidelines based…
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PATTERSON, Judge.
The appellant challenges the sentence imposed upon her following the revocation of her probation. She argues that the trial court erred in exceeding the presumptive guidelines sentence on the basis of her multiple violations of probation. We agree and reverse.
The trial court stated that it was not going to follow the guidelines because of the “timing, rapid succession, number of violations and the egregiousness of her probation violations.” The state interprets the trial court’s statement to mean that the departure was based on the appellant’s escalating pattern of criminal conduct. It argues that an escalating pattern of criminal conduct can support departure, citing Keys v. State, 500 So. 2d 134 (Fla.1986). There is no merit to this argument since the record fails to show that the appellant’s criminal conduct escalated.
Although a trial court may “bump up” a defendant’s score one cell for each violation of probation or community control, it may not depart from the guidelines on the basis of multiple violations of probation. Taylor v. State, 595 So. 2d 956 (Fla.1992). In addition, factors relating to the violations of probation may not support departure. Hamilton v. State, 548 So. 2d 234 (Fla.1989); Lipscomb v. State, 573 So. 2d 429 (Fla. 5th DCA), appeal dismissed, 581 So. 2d 1310 (Fla.1991).
Since the appellant violated probation and community control on three occasions, we remand to the trial court for resentencing to no more than three cells above the appellant’s score. See Williams v. State, 594 So. 2d 273 (Fla.1992).
Reversed and remanded.
LEHAN, C.J., and PARKER, J., concur.
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Williams v. State, 614 So. 2d 642 (Fla. 2d DCA 1993)…5 So. 2d 838 (Fla.1989). The fact that Williams was unsuccessful in completing probation relates to his successive violations, the penalty for which is a one-cell bump for each violation. Williams v. State, 594 So. 2d 273 (Fla.1992); Bowen v. State, 606 So. 2d 1261 (Fla. 2d DCA 1992). Finally, his “continuing and persistent pattern of criminal activity” is a reason related to his record and is taken into account in computing the guidelines sentence. Reversed and remanded for resentencing within the guideline…
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State v. Wallace, 623 So. 2d 1191 (Fla. 1993)…PER CURIAM. We review State v. Wallace, 606 So. 2d 1261 (Fla. 4th DCA1992), based on a certified question. Art V, § 3(b)(4), Fla. Const. We answered the question, rephrased, in State v. Williams, 623 So. 2d 462 (Fla.1993). The decision under review is approved on the authority of Williams. It is so or…
Authorities Cited
- Keys v. State, 500 So. 2d 134 (Fla. 1986)
- Williams v. State, 594 So. 2d 273 (Fla. 1992)
- Hamilton v. State, 548 So. 2d 234 (Fla. 1989)
- Truesdale v. Landau, 573 So. 2d 429 (Fla. 5th DCA 1991)
- Taylor v. State, 595 So. 2d 956 (Fla. 1992)