STATE OF FLORIDA, APPELLANT,
v.
MELVIN BENJAMIN, APPELLEE
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The State appealed downward departure sentences imposed on Melvin Benjamin across three consolidated criminal cases. The appellate court reversed all three sentences due to lack of evidentiary support for downward departures and improper sentencing enhancements, and remanded for resentencing within guidelines.
The Court reversed all three sentences. In case 95-10252, the downward departure was unsupported by evidence and must be resentenced within guidelines. In case 94-00603, the ten-year suspended sentence exceeded the permissible five-year balance and cannot exceed that prior suspended term. In case 93-00603, Benjamin cannot be sentenced as a habitual offender without prior notice and should receive only a guidelines sentence with one-cell bump for each probation violation.
[1] A downward departure sentence requires evidence supporting the defendant's need for and amenability to specialized treatment.
[2] Upon a violation of probation in a true split sentence, a trial court may not impose new incarceration exceeding the remaining balance of the suspended term.
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Join FLexlaw to unlock all legal intelligence“However, there was no evidence presented to support these two findings.”
Establishes that the downward departure in case 95-10252 was unsupported by evidence in the record
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Join FLexlaw to unlock all legal intelligenceBenjamin pleaded guilty to possession of cocaine and admitted to probation and community control violations across three cases (95-10252, 94-00603, an…
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WHATLEY, Judge.
The state appeals the downward departure sentence imposed on Melvin Benjamin. We reverse and remand for further proceedings.
The sentence was the result of a plea agreement between Benjamin and the trial court in case numbers 95-10252, 94-00603, and 93-00603. The three cases have been consolidated for purposes of appeal.
In case number 95-10252, Benjamin pled guilty to possession of cocaine. The trial court found that a downward departure sentence was appropriate because Benjamin required specialized treatment for his addiction, and he was amenable to such treatment. However, there was no evidence presented to support these two findings. See State v. Cohen, 667 So. 2d 438 (Fla. 2d DCA 1996); State v. Lemon, 664 So. 2d 1072 (Fla. 2d DCA 1995). Therefore, we reverse Benjamin’s sentence and remand for resentencing within the guidelines.
In case number 94-00603, Benjamin admitted violating his probation order and community control order. In that case, the state correctly asserts that Benjamin was improperly sentenced to a suspended ten-year sentence. Benjamin was originally sentenced to a true split sentence of five years of prison suspended and two years of community control followed by three years of probation.
In a true split sentence, upon a violation of probation, the trial court may not order new incarceration that exceeds the remaining balance of the suspended term. Sullivan v. State, 625 So. 2d 955 (Fla. 2d DCA 1993); Wallace v. State, 618 So. 2d 797 (Fla. 2d DCA 1993). Consequently, it was error to give Benjamin a suspended sentence of ten years’ prison. On remand, Benjamin’s sentence may not exceed the five-year term previously suspended.
In case number 93-00603, Benjamin admitted violating his probation order and his community control order. As the state correctly points out, Benjamin was improperly sentenced as a habitual offender in that case. Since a notice of intent to seek an enhanced penalty was not filed before the initial plea hearing on the underlying charges, Benjamin should not have been sentenced as a habitual offender for his violation of probation and community control. See Snead v. State, 616 So. 2d 964 (Fla.1993); Williams v. State, 661 So. 2d 59 (Fla. 2d DCA 1995). On remand, Benjamin should be sentenced to a guidelines sentence with a permitted one-cell bump for each violation of probation and community control. See Henry v. State, 632 So. 2d 676 (Fla. 2d DCA 1994).
Accordingly, in case 95-10252, we reverse Benjamin’s sentence and remand for resentencing within the guidelines. In case 93-00603, we reverse the sentence and direct that the trial court sentence Benjamin to a guidelines sentence with a permitted one-cell bump for each violation of probation. In case 94-00603, we reverse the sentence with instructions that the trial court may not sentence Benjamin to a term greater than the five-year term previously suspended. Since Benjamin’s sentences were the result of a plea agreement between Benjamin and the trial court, he should be given the opportunity to withdraw his pleas on remand. See Cohen, 667 So. 2d at 439.
PARKER, A.C.J., and QUINCE, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Petringelo, 762 So. 2d 965 (Fla. 2d DCA 2000)…the defense presented no evidence in support of these two departure reasons. A finding that the defendant is amenable to treatment must be based on competent substantial evidence. See Herrin v. State, 568 So. 2d 920 (Fla.1990); State v. Benjamin, 685 So. 2d 1335 (Fla. 2d DCA 1996).' See Banks v. State, 732 So. 2d 1065 (Fla.1999) (holding that to establish a sufficient legal ground for a downward departure sentence, the defense must prove the facts supporting the ground by a preponderance of the evidence). H…
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State v. Hillhouse, 708 So. 2d 326 (Fla. 2d DCA 1998)…Hillhouse required specialized treat [*327] ment and he was amenable to treatment. A finding that the' defendant is amenable to treatment must be based on competent substantial evidence. Herrin v. State, 568 So. 2d 920 (Fla.1990); State v. Benjamin, 685 So. 2d 1335 (Fla. 2d DCA 1996); State v. Cohen, 667 So. 2d 438 (Fla. 2d DCA 1996). There must be evidence that there is a reasonable possibility that such treatment will be successful. Herrin, 568 So. 2d at 922. Here, there was no evidence that Hillhouse-was am…
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State v. Carra, 695 So. 2d 885 (Fla. 2d DCA 1997)…rt imposed a true split sentence. See Poore v. State, 531 So. 2d 161, 164 (Fla.1988). Upon revocation of probation, the trial court cannot order incarceration that exceeds the remaining balance of the suspended term. Id.; see also State v. Benjamin, 685 So. 2d 1335, 1336 (Fla. 2d DCA 1996). Accordingly, the new habitual offender suspended sentence of fifteen years’ imprisonment on the aggravated battery charge was illegal. On remand, the trial court cannot sentence Carra to a term greater than the ten-year ter…
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
- Snead v. State, 616 So. 2d 964 (Fla. 1993)
- State v. Cohen, 667 So. 2d 438 (Fla. 2d DCA 1996)
- Wallace v. State, 618 So. 2d 797 (Fla. 2d DCA 1993)
- State v. Lemon, 664 So. 2d 1072 (Fla. 2d DCA 1995)
- Henry v. State, 632 So. 2d 676 (Fla. 2d DCA 1994)
- Williams v. State, 661 So. 2d 59 (Fla. 2d DCA 1995)
- Sullivan v. State, 625 So. 2d 955 (Fla. 2d DCA 1993)
- Siegle v. State, 625 So. 2d 955 (Fla. 2d DCA 1993)