MICHAEL ROBERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Roberson appealed his convictions and sentences for burglary and grand theft following probation revocation. The court affirmed the judgments of guilt but reversed the sentences, finding errors in the sentencing procedure, failure to offer an election between guidelines and non-guidelines sentencing, and failure to enter a written probation violation order.
The court held that Roberson should have been permitted to elect guidelines sentencing for case 83-2461 since the charges predated the guidelines' effective date; the sentences imposed constituted an improper departure from the guidelines range without written justification; and the trial court failed to enter a required formal probation violation order.
[1] A defendant charged with felony offenses that occurred before the effective date of sentencing guidelines has the right to elect guidelines sentencing upon revocation of…
[2] A trial court must resentence a defendant within the recommended guidelines range when it departs from that range without providing written reasons for the departure.
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Join FLexlaw to unlock all legal intelligence“A defendant has the right to elect guidelines sentencing if the felony offenses for which the defendant is being sentenced occurred before the effective date of the guidelines.”
Establishes the fundamental right Roberson was denied regarding sentencing procedure election
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Join FLexlaw to unlock all legal intelligenceRoberson was charged with burglary and grand theft in case 83-2461 in February 1983, receiving withheld adjudication and five years probation. In Marc…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
The appellant, Michael Roberson, challenges his judgments and sentences for burglary and grand theft imposed after his probation revocation hearing. We affirm the judgments, but reverse the sentences.
In February 1983, the appellant was charged in case number 88-2461 with burglary and grand theft. Adjudication was withheld and appellant was sentenced to five years probation on both charges concurrently. In March 1985, the appellant was charged in ease number 85-1469 with grand theft. Adjudication was again withheld and appellant was sentenced to five years probation concurrent with the probation in case number 83-2461. Upon violation of his probation, the appellant was sentenced to two years in prison in case number 83-2461 followed by two years community control in ease number 85-1469. The appellant filed a timely notice of appeal.
First, the appellant claims that he should have been permitted to elect between guidelines and nonguidelines sentencing upon revocation of his probation. In connection with case number 83-2461, we agree. A defendant has the right to elect guidelines sentencing if the felony offenses for which the defendant is being sentenced occurred before the effective date of the guidelines. See § 921.001(4)(a), Fla.Stat. (1983); Wahl v. State, 568 So. 2d 1303 (Fla. 2d DCA 1990), rev. denied, 576 So. 2d 291 (Fla.1991).
The appellant was charged in case 83-2461 prior to the effective date of the guidelines and, therefore, should have been sentenced pursuant to the guidelines only if he affirmatively elected to do so. Since there was no discussion in the trial court regarding such an election, the case should be reversed and remanded for resentencing to afford the appellant the opportunity to elect his preferred sentencing procedure.
Next, the appellant contends that the trial court improperly departed from the sentencing guidelines recommended range without providing written reasons for the departure when it sentenced appellant to two years in prison followed by two years community control. We agree that the imposition of both sentences represented a departure from the recommended guidelines sentence of any nonstate prison sanction up to community control or thirty months incarceration with the application of the one cell bump. See State v. VanKooten, 522 So. 2d 830 (Fla.1988). The case should therefore be remanded for resentencing within the guidelines.
We also agree with the appellant’s last contention that the trial court erred in failing to enter a written order specifying the probation violations found. When a court finds that a probationer has violated his probation, it must enter a formal order setting forth the conditions that it finds were violated. Donley v. State, 557 So. 2d 943 (Fla. 2d DCA 1990). Upon remand, the trial court should enter a proper probation violation order. We, accordingly, affirm the judgments in both cases but reverse and remand the sentences with directions to permit the appellant to elect his preferred sentencing procedure as to case number 83-2461, to resentence appellant within the guidelines and to enter a proper probation violation order.
Affirmed in part, reversed in part, and remanded with instructions.
SCHOONOVER, A.C.J., and ALTENBERND and BLUE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Lavely v. State, 695 So. 2d 895 (Fla. 2d DCA 1997)…firm the revocation of Mr. Lavely’s probation and the sentences imposed thereafter. We remand the case to the trial court to enter a written order revoking probation that sets forth the conditions it found Mr. Lavely violated. See Roberson v. State, 633 So. 2d 1134 (Fla. 2d DCA 1994). DANAHY, A.C.J., and ALTENBERND and WHATLEY, JJ., concur.…
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Shaw v. State, 63 So. 3d 898 (Fla. 5th DCA 2011)…parture. On the limited record before us, we cannot determine if Shaw elected to be sentenced under the 1983 guidelines and, if so, whether the court imposed a valid upward departure sentence.2 See Ames, 470 So. 2d at 95; see also Roberson v. State, 633 So. 2d 1134, 1135 (Fla. 2d DCA 1994) (reversing and remanding for resentencing to afford appellant opportunity to elect preferred sentencing procedure since there was no discussion in trial court regarding election under 1983 guidelines); Thomas v. State, 479 S…
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Coder v. State, 752 So. 2d 83 (Fla. 2d DCA 2000)…. We affirm the revocation of probation and the sentences without discussion. We, however, remand the case to the trial court for entry of a written order of revocation identifying the probation condition Coder [*84] violated. See Roberson v. State, 633 So. 2d 1134 (Fla. 2d DCA 1994). Affirmed and remanded with directions. ALTENBERND, A.C.J., and FULMER and NORTHCUTT, JJ„ Concur.…
Authorities Cited
- State v. VanKOOTEN, 522 So. 2d 830 (Fla. 1988)
- State v. Bodine, 522 So. 2d 830 (Fla. 1988)
- Donley v. State, 557 So. 2d 943 (Fla. 2d DCA 1990)
- Wahl v. State, 568 So. 2d 1303 (Fla. 2d DCA 1990)