TEDDY TOSSIO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A departure sentence for a probation violation is invalid if the reasons for departure are based solely on factors related to the violation itself.
[1] A trial court may not depart from the permitted sentencing range for a violation of probation when the reasons for departure would not have supported departure at the tim…
[2] Factors related to the violation of probation cannot serve as grounds for a departure sentence.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceTeddy Tossio was sentenced to probation for cocaine trafficking and later pled guilty to violating probation based on a new cocaine trafficking convic…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Sentencing Guidelines Departure cases and more on FLexlaw
HARRIS, Chief Judge.
The issue on appeal is whether the trial court erred in departing from the permitted range when sentencing for a violation of probation which was based on a new substantive offense.
In September, 1989, Teddy Tossio was sentenced in Orange county to ten years’ probation as part of a split sentence for trafficking in cocaine. In June, 1993, Tossio pled guilty to violation of probation based on a new conviction for trafficking in cocaine in Seminole county.
Tossio’s seoresheet totalled 140 points, placing him in the fourth cell. The State recommended a sentence of five and one half years (the top of the permitted range), but the sentencing court sentenced him to ten years’ incarceration with credit for the four and one-half years previously served on the conviction and the 31 days served on the violation. This sentence was to run consecutively with the ten-year sentence received for the second trafficking conviction.
The reasons given for the departure were that the crime was a “grave” one and that the violating offense was the same offense for which Tossio was on probation. Tossio appeals; we reverse.
Tossio contends that his departure sentence was invalid because it was, in effect, based on the fact that he had violated probation and therefore could not have supported departure at the time of the original sentencing. Where the reasons given by the trial court for departing when sentencing on violation of probation would not have supported departure at the time of the original sentencing, departure is improper. Williams v. State, 581 So. 2d 144 (Fla.1991); Lambert v. State, 545 So. 2d 838 (Fla.1989). In Lambert, the court held that “factors related to the violation of probation” cannot be used as grounds for departure. Because Tossio’s departure sentence was based solely on a factor related to his violation of probation (the commission of a subsequent crime which was itself the violation), the sentence is improper and must be vacated.
REVERSED and REMANDED for resentencing within the guideline range.
COBB and GOSHORN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
State v. West, 718 So. 2d 266 (Fla. 5th DCA 1998)…defect since the trial court had by that time lost jurisdiction.4 In any event, the reasons given pertain to the violation of probation incident, not the original crime for which West was being sentenced. This is clearly erroneous. Tossio v. State, 634 So. 2d 244, 245 (Fla. 5th DCA 1994). REVERSED and REMANDED. DAUKSCH and ANTOON, JJ., concur. . The permitted range under the guidelines was 4)4 to 9 years in prison and the recommended range was 5)4 to 7 years in prison. . After this case had been appealed…
Authorities Cited
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- Williams v. State, 581 So. 2d 144 (Fla. 1991)