PAUL WICK, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Paul Wick appealed his sentence of ten years incarceration followed by five years probation after pleading no contest to DUI manslaughter and related charges. The Florida appellate court affirmed, holding that the plea agreement's reference to a 'guidelines sentence' encompassed the permitted range (not just the recommended range) and that the imposed sentence constituted no improper departure.
The court held that 'guidelines sentence' includes both the recommended and permitted ranges as shown in the guidelines scoresheets; the imposed sentence was not a departure because the incarceration portion was within the permitted range and the total sanction did not exceed the legal maximum; multiple DUI convictions are permissible where multiple victims are injured; and the trial court properly exercised discretion in requiring live expert testimony rather than accepting a written report.
[1] A "guidelines sentence" under Florida law encompasses both the recommended and permitted sentencing ranges.
[2] A split sentence combining incarceration and probation is permissible if the incarcerative portion falls within the guideline range and the total sanction does not exceed…
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Join FLexlaw to unlock all legal intelligence“It is clear from a review of the sentencing transcript that the defendant, as well as the prosecution, understood this plea agreement to allow the defendant to be sentenced within the permitted range.”
Establishes that parties' mutual understanding of 'guidelines sentence' included the permitted range, not just recommended range
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Join FLexlaw to unlock all legal intelligenceWick pled no contest to DUI manslaughter, DUI with serious bodily injury, and DUI causing damage to another. Under the plea agreement, a guidelines se…
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COPE, Judge.
Paul Wick appeals his sentence entered after a plea of no contest. We affirm.
Paul Wick pled no contest to count I, driving under the influence (“DUI”) manslaughter, count III, DUI with serious bodily injury, and count IV, DUI causing damage to another. Under the written plea agreement, a guidelines sentence was to be imposed. At sentencing, the trial court imposed a period of ten years incarceration, which was within the permitted range, followed by a five-year probationary period.1
Defendant first contends that the term “guidelines sentence” means a sentence with in the recommended range, not the permitted range. Defendant’s recommended range was three to seven years incarceration. He contends that he must be resentenced within the recommended range.
It is clear from a review of the sentencing transcript that the defendant, as well as the prosecution, understood this plea agreement to allow the defendant to be sentenced within the permitted range. The State asked for the maximum incarceration period allowed in the permitted range, twelve years. The defense argued that although a twelve-year period of incarceration was a permissible sentence in this case, the court should impose a lower period of incarceration. It is clear that the parties to the plea agreement understood that the “guidelines sentence” terminology included the permitted range.
Additionally, in our view the term “guidelines sentence” is now generally understood to include both the recommended range and the permitted range. The guidelines score-sheets set forth in Florida Rule of Criminal Procedure 3.988(a) — (i) specifically so provide, by placing both the recommended range and the permitted range under the heading “Guidelines Sentence.” The guidelines scoresheets have been adopted by the legislature as statutes. See § 921.0015, Fla.Stat. (1993) (adopting Fla.R.Crim.P. 3.988). Florida Rule of Criminal Procedure 3.701(d)(ll) requires written reasons for any sentence outside the “permitted guideline range.” We have carefully considered defendant’s argument to the contrary but are not persuaded thereby.2
Defendant next argues that the ten-year term followed by five years’ probation constitutes a departure sentence. We disagree.
Florida Rule of Criminal Procedure 3.701(d)(12) states that “the total sentence cannot exceed the total guideline sentence unless a written reason is given.” The accompanying committee note on that rule provides:
If a split sentence is imposed (i.e. a combination of state prison and probation supervision) the incarcerative portion imposed shall not be less than the minimum of the guideline range nor exceed the maximum of the range. The total sanction (incarceration and probation) shall not exceed the term provided by general law.
Putt v. State, 527 So. 2d 914, 914-15 (Fla. 3d DCA 1988); accord Tyner v. State, 545 So. 2d 961, 962 (Fla. 2d DCA 1989). Here, the incarceration period is within the permitted range, and the total of incarceration plus probation does not exceed the fifteen-year legal maximum. Consequently there is no error on this point.
Defendant next contends that in light of Boutwell v. State, 631 So. 2d 1094 (Fla.1994), he could not be convicted of multiple offenses arising out of a single driving episode. Bout-well, however, involved the offense of driving while a license is suspended. It did not involve the DUI statute. This court has previously held that under the DUI statute, separate convictions are permissible where multiple victims are injured. Wright v. State, 592 So. 2d 1123, 1126 (Fla. 3d DCA 1991), quashed in part on other grounds, 600 So. 2d 457 (Fla.1992), approved in part on other grounds, Boutwell v. State, 631 So. 2d at 1095.
Defendant next contends that the trial court erred by refusing to accept a written report from the defendant’s toxicology ex- [*767-771] pert. The written report indicated that an ulcer medication being taken by the defendant greatly enhanced the absorption of alcohol into defendant’s bloodstream, resulting in a much higher blood alcohol reading than would have been true of an individual not taking that medication. Defendant sought to introduce the evidence to explain what would otherwise be an unusually high .36 blood alcohol reading.
In this case there had been a hearing on a State motion in limine two days prior to the sentencing proceeding. At that time the trial court indicated that evidence regarding the defendant’s medication would be admissible, but the trial court wanted to hear the testimony live from the expert rather than in the form of a written report. Thus, the court ruled that the defense could adduce expert testimony regarding the effect that the defendant’s medication had on that reading. At the sentencing hearing the trial court adhered to those rulings in limine by refusing to admit the written report.3
In our view the trial court had the discretion to require that this testimony come in through a live witness rather than in the form of a written report. We agree with the trial court that the subject matter of the report is not an area the court can be assumed to be thoroughly familiar with, and find no abuse of discretion in the trial court’s decision that the evidence should come in by way of live testimony. Defendant does not complain of any surprise or inability to produce the expert. We find no error on this point.
We conclude that no error has been shown with respect to the remaining points on appeal.
Affirmed.
. On counts III and IV defendant was sentenced to concurrent terms of five years and one year respectively.
. Defendant relies on the 1988 Sentencing Guidelines Commission Note which states in part, "[a] sentencing judge may depart from the recommended sentence and impose a sentence within permitted range without giving reasons therefor. If a sentencing judge departs from the permitted range, reasons for departure shall be articulated at the time sentence is imposed.” Fla.R.Crim.P. 3.701, Sentencing Guidelines Commission Notes, 1988 Amendments, Note (d)(ll), 34 Fla.Stat.Ann. 145 (1989). Based on this note, defendant argues that any sentence outside the recommended range is a departure sentence, even though departure reasons need not be given for a sentence within the permitted range. In our view this 1988 Committee Note was simply intended to explain how the (at that time) new 1988 sentencing guidelines would operate, taking as a beginning point the pre-1988 guidelines which only had a recommended range, not a permitted range. We do not think this Committee Note addresses the question whether under the 1988 amendments, the term "guidelines sentence" should be deemed to include the permitted range as well as the recommended range.
. The defense did not call the toxicology expert as a witness.
Cases With Similar Vibessemantic neighbors from the corpus
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Peters v. State, 128 So. 3d 832 (Fla. 4th DCA 2013)…e, 567 So. 2d 882, 886 (Fla.1990) (quoting Fla. R. Crim. P. 3.701(d)(ll)), a trial judge is empowered to impose an upward departure above the “permitted” guideline sentence. See Williams v. State, 492 So. 2d 1308, 1309 (Fla.1986); cf. Wick v. State, 651 So. 2d 765, 766 n. 2 (Fla. 3d DCA 1995) (stating that sentencing a defendant within the permitted range, but outside of the recommended range, does not constitute a departure). In finding an upward departure to be appropriate under the applicable law and facts…
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State v. Lamoureux, 660 So. 2d 1063 (Fla. 2d DCA 1995)…h hold that multiple convictions for DUI with serious bodily injury are indeed permissible for injuries to more than one victim arising out of a single driving episode. See Pulaski; Onesky v. State, 544 So. 2d 1048 (Fla. 2d DCA 1989); Wick v. State, 651 So. 2d 765 (Fla. 3d DCA [*1065] 1995); Wright; Melbourne v. State, 655 So. 2d 126 (Fla. 5th DCA 1995). In fact, in Wick, the Third District followed its previous holding in Wright and distinguished Boutwell on the basis that it involved the offense of driving…
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Bell v. State, 811 So. 2d 837 (Fla. 5th DCA 2002)…PER CURIAM. AFFIRMED. See Wick v. State, 651 So. 2d 765, 766 (Fla. 3d DCA 1995). SHARP, W., SAWAYA, and PLEUS, JJ., concur.…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Wright, 600 So. 2d 457 (Fla. 1992)
- THE Florida BAR v. MacMILLAN, 600 So. 2d 457 (Fla. 1992)
- Boutwell v. State, 631 So. 2d 1094 (Fla. 1994)
- Putt v. State, 527 So. 2d 914 (Fla. 3d DCA 1988)
- Tyner v. State, 545 So. 2d 961 (Fla. 2d DCA 1989)
- Tillery v. State, 592 So. 2d 1123 (Fla. 1st DCA 1991)
- Wright v. State, 592 So. 2d 1123 (Fla. 3d DCA 1991)