RICHARD J. POWELL, 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.
Richard Powell appealed his sentence for burglary, arguing the trial court erred in applying sentencing guidelines. The Fifth District Court of Appeal agreed, finding the trial court improperly enhanced Powell's sentencing points by 15% and imposed a state prison sentence when guidelines did not permit it.
The trial court erred in two respects: (1) it improperly enhanced the 25.7 sentencing points by 15% because a 15% enhancement is only permitted when it yields a total exceeding 40 points, and (2) it imposed a state prison sentence without written reasons for departure when the scoresheet total fell below 40 points, which requires a county jail sentence absent a departure sentence.
[1] A trial court may increase a total sentencing points by 15% only if the increase will yield a point total of over 40 points.
[2] A trial court cannot impose a state prison sentence for an offense if the sentencing guidelines point total is below 40, absent written reasons for such a departure.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“A trial court can increase the total sentencing points by 15% only if the increase will yield a point total of over 40 points.”
Establishes the legal standard for when sentencing point enhancements are permitted under Florida guidelines
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePowell was convicted of burglary of a structure and also violated probation based on the same offense. The trial court sentenced him to 5 years in DOC…
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 Written Reasons For Departure cases and more on FLexlaw
THOMPSON, Justice.
Richard J. Powell appeals the sentence imposed by the trial court for Powell’s conviction for the offense of burglary of a structure. The burglary offense also formed the basis for a violation of probation. The trial court sentenced Powell to five years in the Department of Corrections (“DOC”) with credit for time served for the violation of probation. For the burglary offense, Powell received a concurrent sentence of 29.55 months in the DOC followed by two years drug offender probation. On appeal, Powell contends that the trial court erred in sen-' tenting him to 29.55 months in the DOC. We agree.
Powell was sentenced for the burglary offense based upon a 1994 sentencing guidelines scoresheet. In sentencing Powell to 29.55 months in the DOC, the trial court erred in two respects. Powell initially received 25.7 total sentencing points.
The trial court first erred when it enhanced this total by 15% to raise the total to 29.55. A trial court can increase the total sentencing points by 15% only if the increase will yield a point total of over 40 points. See Amendments to Florida Rules of Criminal Procedure re Sentencing Guidelines, 628 So. 2d 1084, 1094 (Fla.1993); Fla.R.Crim.P. 3.702 (1994).
The trial court also erred when it imposed a state prison sentence. Even with the erroneous enhancement, Powell’s scoresheet total did not exceed 40 points. Because the point total was below 40, the trial court could not impose a state prison sentence, absent written reasons for such a departure.
Thus, if incarcerated, Powell could only receive a county jail sentence. See Fla.R.Crim.P. 3.702(d)(16) (1994). For these reasons, we vacate the sentence imposed for the offense of burglary of a structure and remand for resentencing.
A review of the transcript and the sentencing guidelines scoresheet reveals that the trial court did not think it was imposing a departure sentence.
The trial court did not articulate that a departure sentence was being imposed, nor did the court check the box indicating that it was imposing a departure sentence. Further, the trial court did not enter written reasons for a departure sentence. See Fla.R.Crim.P. 3.702(d)(18)(A). Because the trial court erroneously believed that it was imposing a guidelines sentence, upon remand it may either sentence Powell within the guidelines or enter written reasons why a departure sentence is appropri ate. See State v. Betancourt, 552 So. 2d 1107 (Fla.1989); Brown v. State, 632 So. 2d 1052 (Fla. 5th DCA 1994); see also State v. Vanhorn, 561 So. 2d 584 (Fla.1990).
SENTENCE VACATED and REMANDED with instructions.
DAUKSCH and W. SHARP, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Betancourt, 552 So. 2d 1107 (Fla. 1989)
- State v. Vanhorn, 561 So. 2d 584 (Fla. 1990)
- Amendments to Florida Rules of Criminal Procedure re Sentencing Guidelines, 628 So. 2d 1084 (Fla. 1993)
- Brown v. State, 632 So. 2d 1052 (Fla. 5th DCA 1994)