AARON JASON DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant cannot be sentenced to a term that could not have been validly imposed at the time of initial sentencing, even upon a probation violation.
Appellant was sentenced to 22 years in prison after violating probation, which was the maximum sentence under the guidelines applied. However, the off…
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PER CURIAM.
Appellant was sentenced to 22 years in prison upon violating probation on multiple counts. After applying a one cell “bump up,” the sentence was the maximum that could be imposed under the present sentencing guidelines. However, the offenses for which Appellant was initially sentenced occurred prior to July 1, 1988, the effective date of the guidelines applied by the trial court.
Upon violating probation, Appellant may not be sentenced to a term that could not have been validly imposed at the time of initial sentencing. Therefore, it was error to impose a sentence that could only have been imposed initially as a departure from the guidelines, without complying with the requirements for departure. See Snyder v. State, 615 So. 2d 231 (Fla. 1st DCA 1993); Strickland v. State, 596 So. 2d 1155 (Fla. 2d DCA), rev. denied, 602 So. 2d 942 (Fla.1992), cert denied, — U.S. -, 113 S.Ct. 1289, 122 L.Ed.2d 681 (1993). See also State v. Williams, 546 So. 2d 809 (Fla. 4th DCA), rev. denied, 553 So. 2d 1168 (Fla.1989).
Appellant’s sentence is reversed and remanded for resentencing. As the trial court was not aware that the imposed sentence exceeded the guidelines, a departure sentence may be considered on resentencing. We find no error as to the other issue raised on appeal.
DELL, C.J., and STONE and KLEIN, JJ., concur.
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Citator
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Gibbs v. State, 667 So. 2d 371 (Fla. 1st DCA 1995)…516 So. 2d 342 (Fla. 1st DCA 1987). Upon violating probation, a defendant cannot be sentenced to a term that could not have been validly imposed at the time of initial sentencing. Snyder v. State, 615 So. 2d 231 (Fla. 1st DCA 1993); Davis v. State, 636 So. 2d 575 (Fla. 4th DCA 1994). The trial court must determine which of Gibbs’ offenses were committed before October 1, 1986, score these as “additional offenses,” and recalculate his scoresheet accordingly. Moreover, because the offenses underlying Gibbs’…
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Miranda v. State, 643 So. 2d 708 (Fla. 4th DCA 1994)…departure. Accordingly, we quash defendant’s sentence and remand with instructions to either set forth valid written reasons for departure or for sentencing within the guidelines. See State v. Betancourt, 552 So. 2d 1107 (Fla.1989); Davis v. State, 636 So. 2d 575 (Fla. 4th DCA 1994); Harmon v. State, 599 So. 2d 754 (Fla. 4th DCA 1992). AFFIRMED IN PART; REVERSED IN PART AND REMANDED. DELL, C.J., and WARNER and PARIENTE, JJ., concur.…
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Gray v. State, 645 So. 2d 550 (Fla. 4th DCA 1994)…where the trial court at the first sentencing labors under a misapprehension that the sentence being imposed is not a departure from the applicable sentencing guidelines. We agree. See State v. Betancourt, 552 So. 2d 1107 (Fla.1989); Davis v. State, 636 So. 2d 575 (Fla. 4th DCA 1994); Harmon v. State, 599 So. 2d 754 (Fla. 4th DCA 1992). In all other respects we affirm and remand for sentencing under the law in effect at the time the crimes were committed, which, in the discretion of the trial court, may inc…
Authorities Cited
- Strickland v. State, 596 So. 2d 1155 (Fla. 2d DCA 1992)
- Snyder v. State, 615 So. 2d 231 (Fla. 1st DCA 1993)
- Blands v. State, 546 So. 2d 809 (Fla. 4th DCA 1989)
- State v. Ira Williams, 546 So. 2d 809 (Fla. 4th DCA 1989)