EDWARD E. NOBLES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Edward E. Nobles appeals a departure sentence imposed after revocation of his probation. The Florida District Court of Appeal reverses the departure sentence because the trial court's stated reasons for departing from sentencing guidelines are not permissible under Florida law.
The departure sentence is reversed because none of the trial court's written reasons are permissible under Florida law. The court held that factors relating to the probation violation itself cannot support a departure sentence, and justifications that did not exist at the initial sentencing cannot be used as grounds for departure.
[1] A departure sentence imposed after revocation of probation cannot be based on reasons that are not permissible grounds for departure.
[2] Factors relating to the conduct constituting a probation violation cannot be used as grounds for a departure sentence.
Previewing 2 of 4 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“None of the written reasons advanced by the trial court for the departure sentence are permissible.”
Establishes the core legal error—that the reasons given do not meet Florida's standards for departure sentencing.
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Join FLexlaw to unlock all legal intelligenceIn 1994, Nobles pled guilty to sale and possession of cocaine and received three years' probation. In 1997, a probation violation affidavit was filed …
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PER CURIAM.
In this direct appeal, Edward E. Nobles challenges a judgment and departure sentence entered after revocation of his probation. Because the reasons advanced by the trial court for the departure sentence are not permissible reasons for departure, we reverse.
In 1994, appellant pled guilty to sale and possession of cocaine and was sentenced to three years’ probation. In October 1997, an amended affidavit of violation of probation was filed alleging that appellant had violated his probation by driving under the influence of alcohol and cocaine and driving with a suspended license. These charges arose out of a single vehicle accident in September 1995 as to which a jury found appellant not guilty of DUI manslaughter and felony driving with a suspended license but guilty of driving while his license was suspended.
At the violation of probation hearing, appellant denied the charges in the affidavit, but admitted driving while his license was suspended in violation of probation. The trial court found that appellant had violated his probation and, in a departure from the guidelines, sentenced appellant to five years imprisonment. The trial court stated the reasons for the departure, as follows:
The Court further finds that the sentencing scoresheet in this case is inappropriate and that because of your past criminal conduct, the danger that it poses to the community, the probability that you will continue your criminal conduct if released back on probation. The Court finds that the departure sentence in this case is appropriate.
On the guidelines scoresheet, the trial court wrote:
Pattern of criminal conduct Danger to com - the Probability of danger to community
Appellant moved for rehearing and to correct the sentence arguing that the departure sentence was contrary to law. The motions were denied.
Section 921.0016(2), Florida Statutes (1997), gives the appellant the right to appeal this sentence outside of the sentencing guidelines. The asserted sentencing error was preserved. Compare Watson v. State, 710 So. 2d 654 (Fla. 1st DCA 1998).
We reverse the departure sentence imposed after appellant violated his probation. None of the written reasons advanced by the trial court for the departure sentence are permissible. See Scott v. State, 508 So. 2d 335 (Fla.1987); Hendrix v. State, 475 So. 2d 1218 (Fla.1985). Further, although the record is susceptible to the construction that the trial court was also trying to depart based upon the conduct constituting the violation of probation, factors relating to the probation violation cannot be used as grounds for a departure sentence. See Lambert v. State, 545 So. 2d 838, 842 (Fla.1989). Finally, none of the justifications for a departure sentence advanced by the trial court existed at the time of the initial sentencing for the drug offenses and, therefore, are invalid reasons for departure. See Routenberg v. State, 677 So. 2d 1325, 1326 (Fla. 2d DCA 1996).
Accordingly, the sentence must be REVERSED and REMANDED for the trial court to impose a sentence within the guidelines. Wyche v. State, 576 So. 2d 884 (Fla. 1st DCA 1991).
KAHN, BENTON and VAN NORTWICK, JJ., CONCUR.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- Scott v. State, 508 So. 2d 335 (Fla. 1987)
- Wyche v. State, 576 So. 2d 884 (Fla. 1st DCA 1991)
- Stephens v. State, 677 So. 2d 1325 (Fla. 2d DCA 1996)
- Routenberg v. State, 677 So. 2d 1325 (Fla. 2d DCA 1996)
- Watson v. State, 710 So. 2d 654 (Fla. 1st DCA 1998)
- O'Donovan v. Citibank, FSB, 710 So. 2d 654 (Fla. 3d DCA 1998)