THOMAS FRIEDLY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court affirmed the convictions for grand theft and possession of cocaine but reversed the sentence. The court found the sentence constituted an unlawful departure from sentencing guidelines based on an excessive number of probation violations.
No, the departure was unlawful. While probation violations can justify a departure, an excessive number of violations is not a proper basis for departure under the established case law. The sentence was reduced to reflect only three separate violations.
“However, we agree that Friedly’s sentence of five years on each count, consecutive, represents an unlawful departure from the sentencing guidelines.”
Establishes the core issue of the appeal regarding the sentence.
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Join FLexlaw to unlock all legal intelligenceThomas Friedly pleaded guilty to grand theft and possession of cocaine. The trial court sentenced him to five years on each count, consecutively, depa…
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PER CURIAM.
Thomas Friedly appeals from convictions for grand theft and possession of cocaine. The convictions themselves, which both follow pleas of guilty, are not contested on appeal and are hereby affirmed. However, we agree that Friedly’s sentence of five years on each count, consecutive, represents an unlawful departure from the sentencing guidelines. We therefore remand for sentencing within the guidelines.
The trial court departed based on Friedly’s “excessive number of [probation] violations.” As recognized in Williams v. State, 594 So. 2d 273 (Fla.1992), this is not a proper basis for departure. At most, under Williams the trial court could have “bumped” the recommended sentence one cell per violation. Friedly’s ten-year sentence represents a six-cell enhancement. The state contends that Friedly has violated probation or community control at least six times, thus the departure order involves only harmless error. The record in this case may fairly be described as a morass of violation affidavits, handwritten clerk’s memoranda, orders of violation, reinstatement, and modification, and other legal paperwork. Absolutely nothing recommends Friedly as a candidate for anything more lenient than incarceration. However, we must agree with Friedly that the record demonstrates only three separate violations, requiring reduction of his sentence by three cells.
The remaining sentencing issue raised in Friedly’s brief is without merit.
Affirmed in part, reversed in part, and remanded for resentencing.
RYDER, A.C.J., and DANAHY and FRANK, JJ., concur.