ROBERT GIBBS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in calculating the defendant's sentencing guidelines scoresheet by improperly scoring offenses underlying violations of probation as prior record.
[1] A sentence imposed upon a violation of probation cannot exceed the term that could have been validly imposed at the time of the initial sentencing.
[2] Offenses underlying a violation of probation committed before October 1, 1986, must be scored as additional offenses at conviction, not as prior record.
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Join FLexlaw to unlock all legal intelligenceAppellant was sentenced in multiple cases, some involving new offenses and others violations of probation (VOPs). The offenses underlying the VOPs wer…
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PER CURIAM.
Appellant, Robert Gibbs, appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), in which he alleged that his sentence was based upon an incorrect calculation on his sentencing guidelines scoresheet. We agree and therefore reverse and remand with directions to grant appellant’s motion and re-sentence him.
Gibbs was sentenced June 1, 1993 in 26 cases, 16 of which were new cases and the remainder violations of probation (VOPs). The record shows that the offenses underlying his VOPs were scored as “prior record,” and that some or all of these offenses were committed before October 1, 1986. Prior to that date, offenses underlying VOPs were scored as “additional offenses at conviction.” Hingson v. State, 553 So. 2d 768 (Fla. 1st DCA 1989); Mincey v. State, 525 So. 2d 465 (Fla. 1st DCA 1988); Slappy v. State, 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’ VOPs cannot be scored as “prior record,” all of his convictions for making a forged instrument must be scored together as “primary offense at conviction,” if this is the most serious offense. All counts of an offense involving the severest penalty, which must be scored as the “primary offense at conviction,” should be scored together as multiple counts of the same offense, regardless of when the offenses were committed. Jeter v. State, 604 So. 2d 1250 (Fla. 1st DCA 1992); Riggs v. State, 540 So. 2d 897 (Fla. 1st DCA 1989).
REVERSED and REMANDED for further proceedings.
ERVIN, BOOTH and WEBSTER, JJ., concur.
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Hopkins v. State, 711 So. 2d 603 (Fla. 1st DCA 1998)…ee felony, and the statutory maximum sentence is imprisonment not exceeding 15 years. “Upon violate ing probation, a defendant cannot be sentenced to a term that could not have been validly imposed at the time of initial sentencing.” Gibbs v. State, 667 So. 2d 371 (Fla. 1st DCA 1995). We reverse that portion of the order denying relief with regard to the claim that the sentence imposed for the second degree felony exceeded the maximum sentence permitted by statute and remand with directions to resentence app…
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Vinson Peterson v. State, 962 So. 2d 367 (Fla. 4th DCA 2007)…offense. The State concedes there was no evidence presented that Peterson was on probation when the underlying offenses occurred. On remand, the trial court should remove these four points from Peterson’s sentencing score-sheet. See Gibbs v. State, 667 So. 2d 371 (Fla. 1st DCA 1995) (“Upon violating probation, a defendant cannot be sentenced to a term that could not have been validly imposed at the time of initial sentencing.”). Further, we find it was error for the trial court to add forty points to Peters…
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Schroeder v. State, 680 So. 2d 473 (Fla. 1st DCA 1996)…appeals an order on resentencing on the grounds that his guidelines scoresheet was incorrectly calculated. The state concedes the error. We vacate the sentences and remand for a proper calculation of the scoresheet and resen-tencing. Gibbs v. State, 667 So. 2d 371 (Fla. 1st DCA 1995); Jeter v. State, 604 So. 2d 1250 (Fla. 1st DCA 1992). After a jury trial in 1994, Schroeder was found guilty of five counts comprising various offenses covered by section 827.071(1)-(4), Florida Statutes (sexual performance by a…
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
- Slappy v. State, 516 So. 2d 342 (Fla. 1st DCA 1987)
- Cunningham v. AT & T Techs., 553 So. 2d 768 (Fla. 1st DCA 1989)
- Jeter v. State, 604 So. 2d 1250 (Fla. 1st DCA 1992)
- Snyder v. State, 615 So. 2d 231 (Fla. 1st DCA 1993)
- Mincey v. State, 525 So. 2d 465 (Fla. 1st DCA 1988)
- Davis v. State, 636 So. 2d 575 (Fla. 4th DCA 1994)
- Riggs v. State, 540 So. 2d 897 (Fla. 1st DCA 1989)