ISABELLE RODRIGUEZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Isabelle Rodriguez appeals her five-year sentence for possession of cocaine imposed after probation revocation. The Florida appellate court reverses and remands for resentencing because the trial judge improperly relied on a new criminal offense (conspiracy to commit murder) to justify an upward departure beyond the permitted one-cell increase under sentencing guidelines.
The trial court erred in imposing the two-cell upward departure because it relied solely on the new offense of conspiracy to commit murder, which was not a reason that existed when probation was originally imposed. The sentence must be reversed and the case remanded for resentencing within the guidelines.
[1] A trial court must use a scoresheet based on the primary offense that caused a defendant to be placed on probation when determining sentences for a probation violation.
[2] When resentencing after a probation violation, a trial court must impose either the recommended or permitted guideline sentence for the original convictions.
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Join FLexlaw to unlock all legal intelligence“the trial court may not impose a sentence exceeding the one cell upward departure permitted by Rule 3.701(d)(14) unless the excess departure is based on valid reasons which existed at the time the defendant was placed on probation”
Establishes the governing legal standard for permissible upward departures in probation revocation cases
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Join FLexlaw to unlock all legal intelligenceRodriguez pleaded nolo contendere to possession of cocaine in February 1993 and received two years probation with adjudication withheld. In September …
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PER CURIAM.
Isabelle Rodriguez, defendant in the trial court, appeals her sentence for possession of cocaine following revocation of probation.
On February 2, 1993, defendant was charged by information with possession of cocaine.
Pursuant to a plea agreement, defendant pleaded nolo contendere to the charge in exchange for two years probation and withholding of adjudication of guilt.
In September 1993, the state filed an affidavit alleging that defendant had violated her probation by conspiring to commit murder. Defendant admitted to the court that she had engaged in such activity. In response, the trial court revoked defendant’s probation, adjudicated her guilty of the initial charge of possession of cocaine, sentenced her to five years imprisonment and entered a nolle pro-sequi on the new substantive charge of conspiracy to commit murder. The five year sentence for possession of cocaine constituted a two cell upward departure from the permitted guideline sentence.1 At the sentencing hearing the trial judge announced he was departing from the guideline sentence because the defendant had engaged in criminal activity by conspiring to commit murder. The trial judge wrote this reason on the guideline scoresheet.
Defendant advances two arguments as to why her sentence should be vacated. First, defendant argues that the trial court erred by imposing a departure sentence without providing written reasons on the record. Defendant, however, neglects to recognize the trial judge’s notation on the score-sheet. There, the trial judge wrote that the departure sentence was based on the new criminal offense of conspiracy to commit murder. This notation was sufficient to satisfy the writing requirement for a departure sentence. See Torres-Arboledo v. State, 524 So. 2d 403 (Fla.1988); Ferguson v. State, 537 So. 2d 144 (Fla. 3d DCA 1989); Velazguez-Velazguez v. State, 523 So. 2d 774 (Fla. 3d DCA 1988).
Second, defendant argues that her sentence cannot stand because the trial judge gave an invalid reason for the two cell departure. Specifically, defendant contends it was improper for the judge to rely on the new offense of conspiracy to commit murder as the reason for departing from the guideline sentence. Rule 3.701(d)(14) of the Florida Rules of Criminal Procedure permits the trial court to impose a one cell upward departure upon revocation of probation. Yet the trial court may not impose a sentence exceeding the one cell upward departure permitted by Rule 3.701(d)(14) unless the excess departure is based on valid reasons which existed at the time the defendant was placed on probation. See State v. Johnson, 585 So. 2d 272 (Fla.1991); Williams v. State, 581 So. 2d 144 (Fla.1991); Lambert v. State, 545 So. 2d 838 (Fla.1989).
It is clear the trial judge used the new criminal offense of conspiracy to commit murder as the basis for imposing the extra one cell departure. This fact is evidenced by the trial judge’s own handwritten notation on the scoresheet and further supported by the trial judge’s comments at the sentencing hearing. Such a reason would not have supported a departure sentence at the time the defendant was placed on probation and thus cannot support a departure sentence now.
Accordingly, because the trial judge’s reason in support of departure is invalid, we reverse appellant’s sentence and remand for resentencing within the guidelines.2
Reversed and remanded.
. The permitted guideline range was any non-state prison sanction, community control, or 12 to 22 months incarceration.
. Under Shull v. Dugger, 515 So. 2d 748 (Fla. 1987), the trial court may not enunciate new reasons for a departure sentence after the reasons given for the original departure sentence have been reversed by an appellate court.
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Barger v. State, 923 So. 2d 597 (Fla. 5th DCA 2006)…he 1995 case. On October 8, 2004, while this appeal was pending, Barger filed a rule 3.800(b)(2) motion in the trial court to correct his sentences in the 1995 case. At a hearing on November 5, 2004J the State conceded error. See Rodriguez v. State, 645 So. 2d 98 (Fla. 3d DCA 1994) (recognizing trial court may not impose sentence exceeding one cell upward departure upon revocation of probation unless excess departure is based on valid reasons which existed at the time defendant was placed on probation). The…
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Mario v. Troncoso, 825 So. 2d 494 (Fla. 3d DCA 2002)…e a sentence exceeding a one-cell upward departure upon revocation of probation unless the departure was based on valid reasons which existed at the time defendant was placed on probation. See Fla. R. Crim. P. 3.701(d)(14)(1986); Rodriguez v. State, 645 So. 2d 98, 100 (Fla. 3d DCA 1994). The violence of case number 86-28204 did not exist at the time Troncoso was placed on probation. However, because there was a fifteen-year minimum mandatory sentence for counts three and four, the court was free to impose a…
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Dawes v. State, 138 So. 3d 567 (Fla. 2d DCA 2014)…a. 2d DCA 2004); Williams v. State, 734 So. 2d 1113 (Fla. 2d DCA 1999); Greenlee v. State, 591 So. 2d 310 (Fla. 2d DCA 1991); Murray v. State, 36 So. 3d 792 (Fla. 1st DCA 2010); Mills v. State, 840 So. 2d 464 (Fla. 4th DCA 2003); Rodriguez v. State, 645 So. 2d 98 (Fla. 3d DCA 1994). KHOUZAM, MORRIS, and SLEET, JJ., Concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- Shull v. Dugger, 515 So. 2d 748 (Fla. 1987)
- Torres-Arboledo v. State, 524 So. 2d 403 (Fla. 1988)
- Williams v. State, 581 So. 2d 144 (Fla. 1991)
- State v. Johnson, 585 So. 2d 272 (Fla. 1991)
- Velazguez-Velazguez v. State, 523 So. 2d 774 (Fla. 3d DCA 1988)
- Ferguson v. State, 537 So. 2d 144 (Fla. 3d DCA 1989)