DIANA YVONNE WARRENDER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Diana Warrender appealed her sentences imposed after violation of community control and new drug possession charges, arguing they exceeded the maximum permitted guidelines sanction. The court reversed and remanded for resentencing because the combined sanctions of 4.5 years incarceration plus 2 years community control exceeded the 4.5-year maximum guideline range without written departure reasons.
The combined sanctions imposed exceeded the maximum guideline period of incarceration and therefore must be reversed because no written reasons for departure were provided, as required by Florida Rule of Criminal Procedure 3.701(d)12.
[1] A trial court may increase a sentencing range by one cell for each successive violation of community control.
[2] The one-cell increase authorized for community control violations contemplates both the recommended and permitted sentencing ranges.
Previewing 2 of 4 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“Although a sentence must be imposed for each offense, the total sentence cannot exceed the total guideline range, unless a written departure reason is provided.”
Establishes the fundamental rule that total sentences across multiple offenses are constrained by guidelines limits absent written justification for departure.
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Join FLexlaw to unlock all legal intelligenceWarrender pleaded nolo contendere to violation of community control in one case and possession of cocaine and paraphernalia in another. Her guidelines…
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JOANOS, Chief Judge.
Appellant, Diana Yvonne Warrender, contends the sentences imposed upon the revocation of her community control, and the new offenses she committed during the period of community control, impermissibly exceed the maximum permitted guidelines sanction. We reverse.
On May 12, 1992, appellant pled nolo contendere to violation of community control in circuit court case 89-3230, and to new charges of possession of cocaine and paraphernalia in circuit court case 91-2533. At sentencing, the trial court noted that due to appellant’s two instances of violation of community control, the guidelines authorized a two-cell increase in the sentencing range. The scoresheet total of 72 points placed appellant in the recommended and permitted sentencing range of any non-state prison sanction. With a two-cell increase, the permitted sentencing range was community control or one to 4⅛⅛ years of incarceration. In case 89-3230, the trial court adjudicated appellant guilty of viola tion of community control, revoked community control, and imposed a sentence of 4¾⅛ years. In case 91-2533, the trial court adjudicated appellant guilty, and imposed two years of community control, to be followed by three years of probation, with this sentencing disposition to be served consecutively to the 4V2-year sentence imposed in case 89-3230.
A sentence imposed after revocation of probation or community control may be increased to the next higher cell without written reasons for departure. Fla. R.Crim.P. 3.701(d)14. When multiple violations of probation or community control are involved, the court may increase the sentencing range one cell for each violation. Williams v. State, 594 So. 2d 273 (Fla.1992). Multiple violations are successive violations which follow reinstatement or modification of probation or community control, rather than a violation of several conditions of a single probation order. Williams, at 274 n. 3; Smith v. State, 605 So. 2d 1002, 1003 (Fla. 1st DCA 1992). The one cell increase authorized by rule 3.701(d)14 contemplates both the “permitted” and the “recommended” sentencing range. Peters v. State, 531 So. 2d 121 (Fla.1988); Brown v. State, 581 So. 2d 936, 937 (Fla. 1st DCA 1991).
Although a sentence must be imposed for each offense, the total sentence cannot exceed the total guideline range, unless a written departure reason is provided. Fla.R.Crim.P. 3.701(d)12. When the sentencing range includes community control or incarceration, the trial court may impose both, provided the combined sanction does not exceed the maximum guidelines period of incarceration. Smith v. State, 605 So. 2d at 1003; Collins v. State, 596 So. 2d 1209 (Fla. 1st DCA 1992), Ewing v. State, 526 So. 2d 1029, 1030 (Fla. 1st DCA 1988). See also Thicklin v. State, 599 So. 2d 202, 204 (Fla. 1st DCA 1992).
The record in this case reflects the successive multiple community control violations necessary for the two-cell increase in the sentencing range. Based on the two community control violations, the trial court imposed a 4V2-year sentence and a consecutive 2-year community control sentence. The combined sanctions exceed the maximum of 4V2 years of incarceration provided by the scoresheet, and no reasons for departure were provided.
Accordingly, the sentencing disposition in this case must be reversed and remanded for resentencing within the guidelines.
WOLF and KAHN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Normando R. Brown v. State, 741 So. 2d 1242 (Fla. 1st DCA 1999)…ed reinstatement or modification of probation. Williams v. State, 594 So. 2d 273, 275 (Fla.1992)(“where there are multiple violations of probation, the sentence may be successively bumped to one higher cell for each violation.”); Warrender v. State, 617 So. 2d 829, 830 (Fla. 1st DCA 1993)(“[m]ultiple violations are successive violations which follow reinstatement or modification - of probation or community control, rather than a violation of several conditions of a single probation order.”). Thus, under secti…
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Lewis v. State, 654 So. 2d 284 (Fla. 3d DCA 1995)…levating appellant’s sentence four cells because the record reflects only two successive violations of community control, and thus only a two cell departure was justified. See Mullins v. State, 622 So. 2d 582 (Fla. 5th DCA 1993); Warrender v. State, 617 So. 2d 829 (Fla. 1st DCA 1993); Smith v. State, 605 So. 2d 1002 (Fla. 1st DCA 1992). Finally, the written sentence of five years on count V in circuit court case number 92-32551, must be corrected to conform with the [*286] court’s oral pronouncement ordering…
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Garcia v. State, 689 So. 2d 456 (Fla. 3d DCA 1997)…So. 2d 273, 275 (Fla. 1992). “Multiple violations are successive violations which follow reinstatement or modification of probation or community control, rather than a violation of several conditions of a single probation order.” Warrender v. State, 617 So. 2d 829, 830 (Fla. 1st DCA 1993). Reversed and remanded for resentencing.…
Authorities Cited
- Williams v. State, 594 So. 2d 273 (Fla. 1992)
- Peters v. State, 531 So. 2d 121 (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)
- Collins v. State, 596 So. 2d 1209 (Fla. 1st DCA 1992)
- Thicklin v. State, 599 So. 2d 202 (Fla. 1st DCA 1992)
- Smith v. State, 605 So. 2d 1002 (Fla. 1st DCA 1992)