RICKY JOE MULLINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1993-08-06
No. 93-768
COBB and GRIFFIN, JJ., concur.
622 So. 2d 582 Florida District Court of Appeal, Fifth District (1993) Positive Treatment
Cited by 6 cases

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Synopsis

Ricky Joe Mullins appealed his sentence for violating probation, arguing that the trial judge improperly imposed a two-cell bump up instead of the permissible one-cell bump up under Florida sentencing guidelines. The court agreed and reversed, holding that when a defendant violates multiple conditions of a single probation order, only a one-cell increase is allowed.


Holding

A defendant who receives a split sentence and violates multiple conditions of a single probation order can be sentenced to a maximum of one-cell bump up from the original sentencing range (7-12 years in this case), not two cells (12-17 years). Multiple violations under different probation orders may warrant multiple one-cell bumps, but violations of multiple conditions within one order warrant only one bump.


Headnotes

[1] A defendant who violates multiple conditions of a single probation order may only be bumped up one cell in the sentencing guidelines, not two.

[2] Multiple violations of probation, for purposes of sentencing guideline enhancements, refers to successive violations following reinstatement or modification of probation,…

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Key Quotes

“Absent a legal reason to exceed the sentencing guidelines, the defendant who has received a split sentence can only be sentenced to a maximum of seven to twelve years in the DOC; that is, a one-cell bump up from his original sentencing cell.”

Establishes the controlling rule that only one-cell bump is permissible for violation of a split sentence without legal justification to exceed guidelines

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Facts & Procedural History

Mullins was sentenced on February 9, 1987 for DUI manslaughter to five years incarceration followed by seven years probation (within the 3-7 year guid…

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Opinion of the Court
THOMPSON, Judge.

THOMPSON, Judge.

The defendant, Ricky Joe Mullins, appeals the summary denial of his 3.850 motion for post-conviction relief. He alleges that he was sentenced in derogation of the sentencing guidelines as they relate to a violation of probation. Specifically, he alleges that the trial judge exceeded the appropriate sentencing cell by improperly imposing a two-cell bump up instead of a one-cell bump up for his violation of probation. We agree and the case is reversed and remanded for resentencing.

On 9 February 1987, Mullins was resen-tenced on the charge of DUI manslaughter and was sentenced to a split sentence: five years incarceration followed by seven years probation. This was a legal sentence because the guideline sentence range was three to seven years incarceration. Mullins takes no exception to this sentence. He served his time, including credit for time served in the Orange County Jail, in the Department of Corrections (“DOC”), and was released on 14 April 1988 to complete the remainder of his sentence on probation. Mullins was arrested on 16 July 1992 for violating two conditions of his probation. This order was the only order alleging any violation of probation. Mullins entered a plea to the violation and signed a written plea form. On the form was written “I understand the maximum penalties for the charge(s) to be 15 years DOC....” On 17 September 1992, Mullins was found in violation of his probation. His probation was revoked and terminated and he was sentenced to 15 years in the DOC with credit for five years and sixty-four days time served. Mullins now argues that although 15 years is the maximum penalty allowed by statute, he is not eligible to receive this sentence because it exceeds the guideline sentence of one-cell bump up.

The sentencing judge at Mullins’ violation of probation hearing noted that Mullins’ scoresheet contained the same number of points at his violation of probation hearing as at his original sentencing hearing and therefore, he was still in the three to seven year range. However, because he had “... two separate violations [the judge] bumped him up two cells into the 12-17 year sentence range_” The trial court relied upon Williams v. State, 594 So. 2d 273 (Fla.1992) and Taylor v. State, 595 So. 2d 956 (Fla.1992). The trial court erred. Absent a legal reason to exceed the sentencing guidelines, the defendant who has received a split sentence can only be sentenced to a maximum of seven to twelve years in the DOC; that is, a one-cell bump up from his original sentencing cell. See Florida Criminal Procedure 3.701(d)(14); Ree v. State, 565 So. 2d 1329 (Fla.1990); Franklin v. State, 545 So. 2d 851 (Fla.1989).

The confusion comes from a single probation order which alleges several violations of conditions of probation as compared to multiple violations of probation. Williams, 594 So. 2d at 274 defines “multiple violations of probation” as “successive violations which follow the reinstatement or modification of probation rather than the violation of several conditions of a single probation order.” A defendant may be bumped up one cell for each successive violation of a probation order, but in the case sub judice, Mullins has violated several conditions of a single probation order. That one probation order contained two violations of conditions of probation, thus he is not eligible to be bumped up more than one-cell for violating the terms and condition of his probation. See Smith v. State, 605 So. 2d 1002 (Fla. 1st DCA 1992) (holding that a trial court cannot bump up a defendant more than one-cell for the violation of several conditions of a single probation order).

The case is reversed and remanded with the direction that Mullins be resentenced with a maximum of one-cell bump up and that he be given all the credit for time served that he has earned.

COBB and GRIFFIN, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Buster Lee Smith v. State, 639 So. 2d 160 (Fla. 1st DCA 1994)
    …ence as to Count I is a departure sentence, not because it exceeds the guidelines range, but because it combines county jail time and community control. The state’s argument herein is therefore irrelevant. It is also incorrect. See Mullins v. State, 622 So. 2d 582 (Fla. 5th DCA 1993) (when a defendant violates several conditions of a single probation order, he is not eligible to be bumped up more than one cell for violating the terms and conditions of his probation).…
  • Moddie Wells v. State, 668 So. 2d 1111 (Fla. 4th DCA 1996)
    …on.” Appellant had on two separate occasions violated probation or community control, thus authorizing a two-cell bump up without the necessity of written reasons of justification. See Williams v. State, 594 So. 2d 273 (Fla. 1992); Mullins v. State, 622 So. 2d 582 (Fla. 5th DCA 1993); Thomas v. State, 622 So. 2d 564 (Fla. 1st DCA 1993). With the two-cell bump up, appellant could have been sentenced within the permitted range of community control or one to four and one-half years’ incarceration. Thus, the sen…
  • Lewis v. State, 654 So. 2d 284 (Fla. 3d DCA 1995)
    …not paying these costs. The trial court also erred in elevating 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 con…

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