FRED M. TESNEY, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tesney appeals his probation revocation sentencing and jail credit award. The court reverses the departure sentence because the trial court's stated reasons improperly relied on the probation violation itself rather than valid sentencing factors, and remands for resentencing within guidelines and proper calculation of jail credit.
The departure sentence must be reversed because all four stated reasons improperly related to the probation violation itself rather than valid sentencing factors, and the record fails to show proper credit for time served. The case is remanded for resentencing within guidelines and proper jail credit calculation.
[1] A departure sentence is invalid when the stated reasons for departure relate solely to the basis for the defendant's violation of probation.
[2] Disregard for court orders, without more, does not constitute a valid reason for a departure sentence.
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Join FLexlaw to unlock all legal intelligence“All four reasons clearly relate to the basis for Tesney's violation of probation and are thus invalid.”
Establishes the core holding that reasons grounded in the probation violation itself cannot support departure sentencing.
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Join FLexlaw to unlock all legal intelligenceTesney was convicted by jury of multiple counts of grand and petit theft targeting an elderly woman. He was initially sentenced to 22 months imprisonm…
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LAZZARA, Judge.
Fred Tesney appeals the trial court’s sentencing departure order following revocation of his probation, as well as the failure to award him proper credit for time previously served in prison. We conclude that the trial court’s reasons for departure were invalid and that the record does not reflect a proper award of jail credit. Accordingly, we reverse and remand for further proceedings.
Tesney was convicted by a jury of multiple counts of grand and petit theft in which the victim of his offenses was an elderly woman. The recommended guidelines sentencing range was any non state prison sanction with a permitted range of up to twenty-two months in prison. The original trial court sentenced Tesney to twenty-two months on one count followed by consecutive probationary terms on the other counts. Tesney admitted violating his probation by committing a similar crime in another county after his release from incarceration. The maximum sentence called for under the guidelines with a one-cell increase was three and one-half years. The trial court, however, elected to impose a departure sentence of two consecutive five-year terms of imprisonment followed by consecutive probationary terms. The departure sentence was based on the following written reasons: (1) blatant disregard for the orders of the court; (2) continued exploitation of the elderly and infirm; (3) conviction of the same type of offense for which he was on probation; and (4) inability to score the new offenses on the sentencing guidelines seoresheet.
All four reasons clearly relate to the basis for Tesney’s violation of probation and are thus invalid. Shaw v. State, 615 So. 2d 209 (Fla. 2d DCA 1993). See also Barba v. State, 600 So. 2d 554, 555 (Fla. 2d DCA 1992) (“Neither factors relating to the violation of probation itself nor the fact that the conduct occurred soon after the release from incarceration constitute a valid reason for departure.”). Additionally, the first reason, which conveys the general concept of disrespect for the law, does not justify a departure sentence. See Brown v. State, 569 So. 2d 1223 (Fla.1990). Accordingly, we must reverse the departure sentence and remand for re-sentencing within the guidelines.
We also conclude that the record fails to reflect that the trial court awarded Tesney proper credit for the time he served on his original twenty-two month prison sentence. Because Tesney committed his offenses before October 1, 1989, he is entitled to receive credit for the time he actually served plus incentive gain time. Tripp v. State, 622 So. 2d 941, 942 n. 2 (Fla.1993); Green v. State, 547 So. 2d 925 (Fla.1989). On remand, we direct the trial court to make a proper award of credit for time served.
Reversed and remanded for resentencing with directions.
RYDER, A.C.J., and BLUE, J., concur.
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Citator
Cited By
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Cordes v. State, 842 So. 2d 874 (Fla. 2d DCA 2003)…proceed on those charges. In this appeal, Mr. Cordes has argued that the trial court erred in departing from the 1992 sentencing scoresheet based upon a subsequent escape conviction. See Lambert v. State, 545 So. 2d 838 (Fla.1989); Tesney v. State, 647 So. 2d 222 (Fla. 2d DCA 1994); Shaw v. State, 615 So. 2d 209 (Fla. 2d DCA 1993). The only case cited by the State to support such a result, Jones v. State, 571 So. 2d 56 (Fla. 2d DCA 1990), appears distinguishable because it involved a violation of probation b…
Authorities Cited
- Tripp v. State, 622 So. 2d 941 (Fla. 1993)
- State v. Green, 547 So. 2d 925 (Fla. 1989)
- Brown v. State, 569 So. 2d 1223 (Fla. 1990)
- Bryant L. Shaw v. State, 615 So. 2d 209 (Fla. 2d DCA 1993)
- Barba v. State, 600 So. 2d 554 (Fla. 2d DCA 1992)